One of the many troubling consequences of Donald Trump’s reelection is that he will largely avoid responsibility for his conduct in his four criminal cases. No other criminal defendant in American history has had the power to shut down his own prosecution. This is an unprecedented and wrenching affront to the principle that no one is above the law.
The potential exception is the New York State case. In May, a jury found Trump guilty of 34 felony counts related to falsifying business records to cover up hush-money payments to the adult-film star Stormy Daniels prior to the 2016 election.
Justice Juan Merchan recently granted the parties’ joint request to pause the New York proceedings while both sides consider what should be done in light of Trump’s reelection. Trump’s attorneys claim that the case must be dismissed altogether to avoid “unconstitutional impediments to President Trump’s ability to govern.” Even the district attorney’s office said it wants time to consider how the court should balance the “competing interests” of the jury verdict and the needs of the office of the presidency.
Out of an abundance of caution, Merchan avoided a preelection sentencing that potentially could have influenced the election. But the election result changes nothing about the criminal case. Now that the election is over, sentencing should proceed promptly.
Once in office, Trump may cancel federal prosecutions of himself and his allies. He has threatened to use the Justice Department to pursue political opponents. He may seek to bend the justice system to his will in unprecedented ways. But that doesn’t mean the DA or Merchan should “obey in advance” by abandoning the jury’s verdict.
Trump’s attorneys are essentially arguing that the election wipes the slate clean, that the people have spoken and all criminal matters must be dismissed. His former attorney general William Barr made a similar point in an interview with Fox News, where he called on prosecutors to drop all the pending criminal cases. “The American people have rendered their verdict on President Trump,” Barr argued. Prosecutors, he said, should “respect the people’s decision and dismiss the cases against President Trump now.”
What nonsense. The election was not a “verdict” on Trump’s criminality. A majority of voters apparently concluded that Trump’s criminal cases were not disqualifying—just as the sexual assaults, pandemic response, efforts to overturn the last election, and many other things apparently were not disqualifying. That doesn’t mean they didn’t happen or that Trump is not legally and morally responsible.
No doubt all public-official defendants would like to be able to say that winning their next election means everyone should just forget about their alleged crimes. That’s not how our system works. An election is not a jury verdict, and winning an election doesn’t make you any less guilty.
When it comes to Trump, the New York case may be the rule of law’s last stand. As president, Trump is sure to swiftly kill off the two pending federal prosecutions—the classified-documents case in Florida and the January 6 case in D.C. He may not even need to do it himself. Special Counsel Jack Smith and the Justice Department have already begun discussing how to wind down the cases, based on the DOJ policy that a sitting president cannot be prosecuted.
Even if the current Justice Department were to attempt to keep the cases alive somehow—such as by merely agreeing to pause them until Trump is out of office in four years—the new Trump Justice Department will simply dismiss them. Trump may pardon his co-defendants and co-conspirators, and may even try to pardon himself.
Unlike with the federal cases, Trump cannot unilaterally make the state prosecutions go away. The Georgia case is currently mired in appeals over whether the DA should be disqualified for a conflict of interest. But although the Justice Department policy against prosecuting a sitting president does not bind the states, the reality is that a state will not be allowed to put a sitting president on trial. If prosecutors survive the appeals, the trial might proceed against the remaining defendants in a year or two. But any potential trial of Trump is sure, at a minimum, to be postponed until he is out of office—and who knows whether there will be any appetite to pursue the case at that point.
That leaves New York. Until he granted the most recent extension of time, Merchan was set to rule on November 12 on Trump’s claim that the Supreme Court’s decision on presidential immunity requires dismissal of his convictions. That argument is a long shot, because almost all of Trump’s relevant conduct in the case took place before he was president. And although Trump is arguing that a few items of evidence in his trial should have been barred by immunity, those claims are unlikely to derail the convictions. Assuming Merchan denies the motion to dismiss, sentencing was set for November 26—until the election results cast that into doubt.
The sentencing should go forward. The argument by Trump’s attorneys that the entire case should be dismissed based on his reelection amounts to nothing more than a claim that a president (or in this case, a president-elect) is above the law and may never be held criminally accountable. Thanks to the election results and the Supreme Court’s immunity decision, that appalling claim may often be true—but it doesn’t have to be in this case.
The defense claim that sentencing would unconstitutionally impede “Trump’s ability to govern” is laughable. Trump is not yet the president. He’s not responsible for governing anything other than his transition. A sentencing proceeding would involve a few hours in a New York courtroom—probably less time than a round of golf. He could squeeze it in.
The defense may be suggesting that if Trump were sentenced to prison, that would interfere with his duties. It’s true that a prison sentence could be problematic. If Merchan were inclined to sentence Trump to prison, he would likely stay that sentence pending appeal. Once Trump was in office, even if the convictions were affirmed, the state presumably would not be allowed to jail the sitting president.
In the unlikely event of Merchan trying to jail Trump immediately, a higher court would undoubtedly intervene. The federal courts are no more likely to allow a state to jail the president-elect than to allow a state to jail the president.
But Merchan has sentencing options short of locking up the president-elect. He could impose a fine and/or sentence Trump to probation, suspending the service of any probationary period until Trump leaves office. He could even impose a jail sentence but similarly suspend that until Trump is no longer president.
At this point, the details of the sentence are less important than the sentencing taking place. Justice requires that the criminal process be completed. The defendant has been found guilty by a jury. The next step, in the ordinary course, is for the judge to impose a sentence. That will formalize Donald Trump’s record as a convicted felon. Even if Trump ends up with no substantial sentence, that’s an important legal and historical statement.
Once he is sentenced, Trump’s attorneys may appeal his convictions. That can proceed with almost no involvement from Trump himself. The appeals process will be handled by the lawyers and will not interfere with any of his presidential duties. His convictions may be affirmed on appeal or they may be tossed out, but there’s no reason the regular criminal process can’t continue.
Although the idea was unthinkable to many of us, a criminal can be president of the United States. The people have spoken, as Trump’s attorneys and supporters would say. But just as Trump’s criminal cases did not prevent his reelection, the election should not prevent the regular criminal process in New York from concluding. This sentencing must proceed.