UPDATE (Jan. 10, 2025, 10:24 a.m. ET): On Friday morning, Judge Juan Merchan officially handed President-elect Donald Trump an unconditional discharge sentence, meaning Trump will officially be a convicted felon when he re-enters the White House.
Justice Juan Merchan will soon sentence President-elect Donald Trump in a Manhattan courtroom after his guilty verdict on 34 felony counts of falsifying business records. Merchan has already stated that he intends to sentence Trump to “unconditional discharge.” This means that Trump will face no jail time or other punishment, but that the conviction will remain on his record.
But even that consequence for his actions was too much for the once and future president to bear, and he has spent the past week pulling out all of the legal stops to prevent this from occurring. In normal times, the sentence would have easily gone forward. But we are not in normal times.
After Trump sought to bend the legal system to his will, what happens next in a courtroom in New York may give us some insight into how the next four years will play out in the relationship between the presidency and the courts.
Trump will face no jail time or other punishment, but that the conviction will remain on his record.
During his presidency, Bill Clinton was sued civilly by Paula Jones over her claim he made unwanted sexual advances toward her when he was governor of Arkansas. The Supreme Court, in a unanimous decision, found that the president’s duties were not so burdensome that the wheels of justice in that case had to grind to a halt just because it was against a sitting president.
Fast-forward to the present. In May 2024, amid the throes of Donald J. Trump’s campaign to return to the presidency, he was found guilty by a jury of his peers of falsifying business records in the lead-up to the 2016 election in an effort to cover up a sexual encounter. Now, having won re-election eight years later, and as his second inauguration looms, the once and future president asked the Supreme Court to take the unprecedented step of intervening to prevent his sentencing in that case, because it would cause harm to him and distract him, not from his official work once sworn in, but from his pre-inauguration efforts.
Since his conviction in May 2024, the trial court has bent over backward to accommodate Trump, delaying the sentencing on three separate occasions due to the extraordinary circumstances of a candidate for the office of the presidency facing punishment for felony convictions.
Trump’s legal team also sought to appeal many aspects of his conviction. One of the arguments on appeal is that the U.S. Supreme Court’s vast immunity ruling from July 2024 means the conviction should be thrown out. That case has nothing to do with a president’s unofficial acts, however. More importantly, it does not apply to things that Trump did before he was even president. The only argument that might connect the two cases — which has already been rejected by Merchan — is that the jury heard some evidence of Trump having engaged in official acts, and that should be enough to toss out his conviction.
That may be an argument that is worthy of consideration through the appellate process. Any defendant should be able to appeal his or her conviction on any plausible claims their legal team can muster.
As of this morning, the Supreme Court has stayed away from this case, for now.
What few, if any, defendants ever get to do is to run to the U.S. Supreme Court on a state conviction to intervene before the state appellate process has run its course, and prior to any sentence even being imposed, to ask the high court to intervene. This is the same court that, in normal times, has demanded that death row inmates check every box, exhaust every avenue of relief open to them and to follow every procedural requirement with meticulous precision prior to seeking to forestall their execution.
As of this morning, the Supreme Court has stayed away from this case, for now. It has allowed the sentencing to go forward. It will certainly have other opportunities to review (and possibly throw out) the conviction and that sentence, whatever it is. That is every defendant’s right: to press grounds for a new trial or even outright dismissal of the case on appeal if any exist.
All it would take for the courts to operate in a manner consistent with the rule of law is for them to treat Trump like they would any other defendant. Doing so would mean that they were simply operating in a manner consistent with the rule of law. Whether that will occur here, or in other contexts, remains to be seen.
Today’s sentencing, light as it inevitably will turn out to be, might just provide some hope that over the next four years, the courts will not simply cower and fold when Trump and his incoming administration are litigants before them.
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.”