President-elect Donald Trump is mounting a resurgent bid to dismiss his criminal conviction in New York in the wake of his electoral victory, hoping to clear his record of 34 felonies before returning to the White House, court records unsealed Tuesday show.
Emboldened by the election results, Trump’s lawyers moved in recent days to throw out the case against the former and future president, who was convicted in May of falsifying records to cover up a sex scandal.
The Manhattan district attorney’s office in New York City, which prosecuted Trump, asked to pause decisions in the case until Nov. 19 so it could weigh how to respond. And the judge overseeing the case, Juan M. Merchan, promptly granted the pause, effectively freezing any progress for the next week.
Merchan was set to rule on several crucial issues this month, including Trump’s sentence, but that schedule is now on hold. A decision he was expected to issue Tuesday, relating to an earlier effort to dismiss the case, is indefinitely delayed.
In requesting the pause, one of the Manhattan prosecutors emailed the judge Sunday to acknowledge the “unprecedented circumstances” and the need to weigh the competing interests of the jury’s verdict against “the office of the president,” a copy of the email released publicly Tuesday shows.
In reply, one of Trump’s lawyers, Emil Bove, wrote that “the stay, and dismissal, are necessary to avoid unconstitutional impediments to President Trump’s ability to govern.”
Trump — the nation’s first former president to become a felon, and its first felon to become a president-elect — has his election to thank for this reversal in his legal fortunes. After his victory, a judge paused all filing deadlines in his federal criminal case in Washington while prosecutors weighed whether to drop the charges now that Trump was returning to the White House.
The president-elect’s effort to unravel all four of his criminal cases encapsulates his expansive view of presidential power and its supremacy over the rule of law.
In Manhattan, his lawyers cited the recent Supreme Court decision granting broad immunity to official presidential acts, as well as a 1963 law that enshrined the importance of a smooth transition into the office.
Trump’s lawyers may also rely on a long-standing Justice Department policy that a president cannot face federal criminal prosecution. That policy undoubtedly applies to both of Trump’s federal criminal cases, but its authority over Manhattan District Attorney Alvin Bragg is an open question.
Trump was convicted in the Manhattan case, unlike in his federal case in Washington, which never made it to trial. Bragg could argue that because his prosecutors already obtained a conviction, he is not in jeopardy of violating the Justice Department policy.
Facing a dilemma without any historical precedent, Bragg, a career prosecutor and an elected Democrat, has a no-win decision to make. He can either drop the case and alienate his Manhattan base, or he can seek to preserve the conviction and risk intensifying the ire of the incoming administration.
Bragg is now entering an “uncertain legal maelstrom,” said Mark C. Zauderer, a veteran New York litigator and partner at Dorf Nelson &Zauderer. “He’s going to have to make a choice at some point to either go forward or essentially do what is seen as waving the white flag.”
Yet Trump’s fate will ultimately rest not with Bragg, but with the courts. Merchan will decide whether to overturn the conviction, a ruling the president-elect could then appeal in either state or federal court. If all else fails, Trump has another valuable card to play: an appeal to the U.S. Supreme Court, where the 6-3 conservative majority includes three justices he appointed in his first term.
Zauderer, who sits on a committee that screens applicants for the court that would hear Trump’s appeal, said an alternative solution might be to freeze the case entirely for four years while Trump is in office. In that scenario, Merchan would not impose Trump’s punishment until 2029 at the earliest.
“It is a possibility to kick the can down the road,” Zauderer said.
For now, the weeklong pause ensures only that Merchan will postpone his ruling on another of Trump’s efforts to overturn his conviction.
The judge had planned on Tuesday to decide on Trump’s request to throw out the case in light of the Supreme Court decision granting former presidents broad immunity for official acts they took in the White House.
It might be a long shot for Trump to connect that ruling to the Manhattan case. Bragg’s prosecutors had argued that the high court ruling had “no bearing on this prosecution,” noting that Trump was convicted of covering up a personal and political crisis that predated his presidency.
Even if Trump fails to overturn his conviction, he is well positioned to avoid any punishment for his crimes.
Trump, who faces up to four years in prison, was set to be sentenced on Nov. 26, but it is highly unlikely that will proceed as planned. The judge has already punted the sentencing twice at Trump’s request, and Merchan might be amenable to doing so again now that the defendant is the president-elect.
Just months ago, Trump was consumed with legal woes, freshly convicted and still facing three other criminal cases in three other jurisdictions. Now, he is headed back to the White House, endangering all four of those cases.
Trump cannot pardon himself in the Manhattan case after he is inaugurated, since he was convicted on state charges and the presidential pardon authority is limited to federal cases.
But his two federal cases might go away even before Trump gets the chance to pardon himself. The federal special counsel who brought them has begun discussions about how to wind them down, in keeping with the Justice Department’s policy against prosecuting sitting presidents.
Trump’s fourth case, in Georgia, where a local prosecutor accused him of trying to subvert the state’s 2020 election results, is delayed indefinitely.
His seven-week trial in Manhattan centered on a hush-money payment made to porn actor Stormy Daniels. Trump’s fixer, Michael Cohen, struck the $130,000 deal with Daniels just days before the 2016 presidential election to silence her story of a sexual encounter with Trump.
Cohen, who testified as the star witness at the trial, was eventually repaid by Trump. The former president, the jury concluded, orchestrated a scheme to falsify records, hiding the real reason for the reimbursement.
Trump was initially set to be sentenced in July, but Merchan agreed to postpone the sentencing because the election was approaching.
But that decision apparently did little to soothe Trump, who has consistently portrayed Merchan and Bragg, both Democrats, as enemies. He has also accused the district attorney of breaking the law by bringing the case against him.
“The prosecutor should be prosecuted,” Trump, often prone to projection, said during a break in the trial in May.
It is a familiar tactic for Trump, who has written about his appreciation for revenge. Some of those sentiments were introduced and read to the jury during his trial.
“For many years I’ve said that if someone screws you, screw them back,” a witness read from a book by Trump.
This article originally appeared in The New York Times.
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