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UPDATE (Jan. 7, 2025, 1:44 p.m. ET): A New York appellate judge on Tuesday denied Donald Trump's motion to delay his sentencing in his hush money case, which is scheduled for Friday.
In the wake of Judge Juan Merchan’s decision last week to preserve the New York hush money indictment and jury verdict against President-elect Donald Trump, my phone blew up with breathless questions like, “Will you be at the sentencing?” and “Do you think he’ll show?”
Not so fast, I told my family and friends. Merchan’s opinion, as well as Trump’s choice in appellate maneuvers, suggest to me — a former litigator and close observer of Trump’s hush money trial — that a Jan. 10 sentencing is no sure thing.
Merchan wrote like he’s running out of time
First, it’s not at all clear to me that Merchan actually expects to hold a sentencing hearing on Jan. 10 or at any other time. What makes me say this? His own opinion.
Indeed, given that Merchan wrote that his inclination is “to not impose any sentence of incarceration” and instead, to consider “a sentence of unconditional discharge,” which is legal speak for no penalty at all, as “the most viable solution,” you might be asking why Merchan would even schedule a sentencing. And there are likely a few reasons, including that a sentence is necessary in virtually all circumstances both to preserve a jury verdict and to enable a defendant to exercise his appellate rights.
On Friday on “Alex Wagner Tonight,” I posed a third possibility: that Merchan, knowing that even the Manhattan district attorney’s team no longer sees jail time as “practicable” given Trump’s countdown to becoming the 47th president, at least wanted to ensure that Trump, like any other convicted defendant, would have to stand before a court of law and listen to its strong, humbling description of his conduct.
But that’s when MSNBC legal analyst Kristy Greenberg, a former Manhattan-based federal prosecutor of many years, observed that sections of the opinion themselves sound like what judges say at sentencing proceedings. For example, rejecting Trump’s argument that the crimes for which he was convicted are comparably not so grave, Merchan castigated Trump for the “premeditated and continuous deception” that underlie his conviction on 34 counts of falsification of business records with the intent to defraud, including “an intent to commit or conceal a conspiracy to promote a presidential election by unlawful means.”
Throughout the opinion, Merchan also bemoans Trump’s lack of remorse, noting his “unrelenting and unsubstantiated attacks against the integrity and legitimacy of this process, individual prosecutors, witnesses and the Rule of Law” and observing that Trump has, on multiple occasions, “pursu[ed] a claim with increasing indignation while simultaneously failing to acknowledge that this Court’s rulings on those subjects have been repeatedly upheld.”
Do those words read as if Merchan understood, when calibrating his opinion, that because of Trump’s expected appellate efforts, this could be his last public statement in Trump’s case? They sure do.
What’s surprising about Trump’s appellate strategy
Speaking of Trump’s anticipated appeals, on Sunday he asked Merchan to stay all remaining proceedings — e.g., the sentencing hearing — in light of his intent to appeal on Merchan’s recent holdings. But the notice of stay filing underscores that while Trump himself is often predictable, his lawyers are not.
Many legal observers — present company included — thought Trump would turn immediately to the U.S. Court of Appeals for the 2nd Circuit (aka the federal appeals court for New York) for relief. After all, he already has a related appeal pending in that court.
But after waiting all weekend for a federal filing, we learned instead that Trump’s team has two state court rabbits up their sleeve: a direct appeal of Merchan’s post-verdict decisions to retain the verdict and indictment, and what’s known as an Article 78 proceeding, a New York-specific process through which government actors can be sued directly for deprivations of a litigant’s constitutional rights.
Does Trump genuinely believe he’ll fare better in “Blue York” appeals courts than he would before the 2nd Circuit, which, just a week ago, affirmed E. Jean Carroll’s first trial victory against him? On one hand, he’d be foolish to do so; Merchan’s Jan. 3 opinion, for example, noted that the narrow gag order in the hush money case has been upheld no fewer than eight times between the two New York state appeals courts with jurisdiction.
But focusing on who ultimately wins or loses ignores the bigger issue here: delay. All Trump needs is one or more judges of the Appellate Division, First Department — the applicable first-tier appeals court — to press pause on the sentencing until 12:01 p.m. on Jan. 20, when Trump becomes president once more. That’s also when, by virtue of taking the oath and for the duration of his term in office, Trump will again have immunity from any and all prosecutions and related proceedings.
And where temporary stays are concerned, the First Department hasn’t always been a disappointment for Trump. On the contrary, it has come through for Trump on a handful of occasions, including by granting a two-week stay of a gag order in another case, thereby freeing Trump to speak freely about the alleged bias of the judge in that case and his law clerk. Now imagine how a two-week stay of the sentencing in this case would serve Trump’s objectives even more clearly: Pausing the sentencing for two weeks would mean that Trump, who will again become president on Jan. 20 at 12:01 p.m., could not be sentenced, if at all, until Jan. 20, 2029, when he is no longer president.
Trump and his lawyers asked Merchan to tell them by 2 p.m. ET on Monday whether he intends to go forward with sentencing; otherwise, they vowed to “seek an emergency appellate review.” Indeed, by Monday evening, Merchan had denied their stay request, finding Trump’s arguments to be primarily “a repetition of the arguments he has raised numerous times in the past.” And Trump’s team had filed his Article 78 action, which accuses Merchan and Manhattan District Attorney Alvin Bragg of “serious and continuing infringement on his Presidential immunity from criminal process.”
Given this, I’m expecting a flurry of activity in New York appeals courts this week — and that none of it will end in a sentencing.
Watch this space.