Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno.
Mark Twain is famously credited as saying “the reports of my death are greatly exaggerated” in response to a reporter’s query about being ill. While the accuracy of the quote is questioned, the spirit of it applies well to reporting and reaction about Judge Juan Merchan’s order vacating the November 26 sentencing date for President-Elect Trump.
Trump was scheduled to be sentenced for his 34 felony convictions in the prosecution brought by Manhattan District Attorney Alvin Bragg but Judge Merchan again delayed the sentencing. Merchan delayed the sentencing to allow Trump’s legal team to make their arguments to dismiss based upon the Supreme Court’s decision on Presidential immunity. The order, however, produced unjustified hyperbole.
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“Trump’s Hush Money Sentencing Postponed Indefinitely” read one CNN headline. Steven Cheung, Trump’s soon-to-be White House Communications Director exclaimed (does he ever not exclaim?) that Merchan’s order was a “decisive win for President Trump” and that the “hoax Manhattan Case is now fully stayed and sentencing adjourned.”
Surprisingly, it’s Cheung’s description of the sentencing being “adjourned” that sounds more in the universe of accuracy then the CNN headline of “postponed indefinitely.” That’s because all that happened was that Merchan took the Nov. 26 sentencing date off the calendar.
It is true he didn’t set a new date yet but just as not setting a wedding date does not mean the wedding is indefinitely postponed, the fact that Merchan has not set a sentencing date cannot be translated as an indefinite postponement.
In truth, Merchan’s order simply grants Trump’s attorneys permission to file their motion to dismiss, and is quite definite about setting a tight briefing schedule for the defense motion (Dec. 2) and the prosecution’s reply (Dec. 9), and forbids any further reply briefings.
Merchan is right to allow a full briefing of the motion to dismiss issue. Even though the view of many legal commentators is that the Supreme Court’s immunity ruling will not result in a dismissal of the guilty verdicts against Trump, it would be arguably reckless for Merchan just to plow ahead.
By allowing a fuller briefing, the court also builds a better record for future appeals courts to rule upon. Ultimately, the issue is likely to go back to the U.S. Supreme Court, so Merchan may as well make his reasoning clear and well-founded upon a fulsome analysis by the lawyers. The more specificity in Merchan’s eventual ruling—assuming he denies the motion to dismiss—the more it limits the target size for an appellate court.
D.A. Bragg’s recognition of the possibility that one option is to delay the sentencing until after Trump is out of office is also part of building a full record. Bragg’s recognition of that possibility again creates a record that shows Merchan had all options before him.
While many of us are tired of being repeatedly disappointed that Trump has yet to be sentenced, the fact remains that only Bragg and Judge Merchan have succeeded at having a prosecution against Trump tried to a verdict. For that they deserve some measure of deference to their judgement. By comparison, the federal cases are now so dead that the only real issue that remains is whether Trump will succeed in firing all of Special Counsel Jack Smith’s team.
In the Mar-a-Lago documents case, Judge Aileen Cannon has been the living embodiment of Trump mentor Roy Cohn’s famous quote: “Don’t tell me what the law is, tell me who the judge is,” and fully rewarded Trump’s faith in her.
In the D.C. election interference case, the best efforts of Judge Tanya Chutkin and the D.C. Circuit could not overcome the Supreme Court’s slow roll of its decision process and the clock-eating process to determine the boundaries of Presidential immunity created by Chief Justice Roberts’ simulacrum of Constitutional analysis.
Whether the Attorney General is to be faulted for giving Special Counsel Jack Smith a late start can be debated until the Garland’s defenders turn blue in the face but what cannot be debated is that Smith and DOJ ran out of time.
The Georgia case is tied up in knots that will not be undone until well into Trump’s second term. Those knots are not just the issue of whether District Attorney Fani Willis will be disqualified from the case over her relationship with Nathan Wade.
Even if the prosecution gets past that hurdle, the Trump Justice Department is likely to pursue some kind of Supremacy Clause argument that Trump cannot be prosecuted while still in office. If you don’t believe that, just note that the Deputy Attorney General at D.O.J. will be one of Trump’s trial attorneys, Todd Blanche, and his Principal assistant will be another Trump defense attorney, Emil Bove.
Regardless of its merit, that argument will take a slow enough road to the Supreme Court that it should take up a good portion of Trump’s term before it is finally decided.
So the forever question of “Will Donald Trump be held accountable?” will in large part rest upon the actions and efforts of Judge Merchan and D.A. Alvin Bragg. But in a larger sense, Steven Cheung is right—it’s all a “decisive victory” for Trump because every case was delayed, and only one made it to trial before Trump was re-elected. It makes me think of Carrie’s words to Big in the long-ago Season 3 of “Sex and the City”: “We’re so over, we need a new word for over.”
