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A deeply divided Supreme Court has decided to allow New York to label newly elected President Trump as a convicted felon, ten days before he enters the White House.
Now that Chief Justice John Roberts and Trump-appointed Justice Amy Coney Barrett have joined the Court’s three progressives — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — the Court gave the green light to Justice Juan Merchan’s determination in the state New York to convict president-elect at age 9: 30 a.m. Friday morning. The sentencing was initiated following a jury’s guilty verdicts in May on 34 counts of falsifying corporate records filed by Manhattan’s elected progressive Democratic district attorney, Alvin Bragg.
Four conservative justices — Clarence Thomas, Samuel Alito and Trump appointees Neil Gorsuch and Brett Kavanaugh — indicated they would have granted Trump’s petition to delay the sentencing.
SUPREME JUDGE DENIES TRUMP ATTEMPT TO STOP CONVICTION IN NEW YORK V. TRUMP
In one pronunciation last week, denying Trump’s post-trial requests In scheduling sentencing for Friday morning, Judge Merchan indicated he would sentence Trump to unconditional discharge — meaning no jail time, no probation, no fine and no post-conviction supervision of any kind. Merchan also ruled that Trump did not have to attend the sentencing in person.
The president-elect announced he will not be at the lower Manhattan courthouse on Friday. He will attend the sentencing remotely to minimize the burden the proceedings will place on the ongoing transition leading up to Inauguration Day on January 20.
The majority rationalized that Trump will not be significantly harmed by the conviction for two main reasons. First, the Court did not rule on the merits of Trump’s claim presidential immunity of criminal prosecution was violated by the introduction by the prosecutor during the trial of evidence of his official presidential actions. That is, Trump can still make his immunity claim on appeal, along with several other claims alleging significant procedural errors. The appeal cannot proceed until Trump is convicted and sentenced, so the conviction will clear the way for that trial.
Second, the Court has effectively locked up Merchan in his stated inclination to give Trump a conditional dismissal sentence. In theory, Merchan’s signal of that intention (in a written opinion last week) was not binding. Technically, a judge is not supposed to decide the sentence before hearing the parties in the criminal proceedings, which won’t happen until Friday morning.
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Nevertheless, the Supreme Court majority’s conclusion that the conviction imposes minimal burden on Trump’s presidential transition hinges on Merchan’s assurances that he was leaning toward a prison term without prison time. If Merchan were to change his mind on this point and impose a prison sentence, the Supreme Court would consider it treason. So, practically speaking, Merchan has no choice but to do what he has indicated he will do.
The majority also relied on Merchan’s directive that Trump would not have to attend the sentencing in person, meaning the proceedings should be short and minimally intrusive on citizens. Trump’s behavior during the presidential transition.
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There is no dissent from the four conservative justices. Presumably, they concluded that the same considerations that led the Court to recognize presidential immunity in its July opinion (in Trump vs. United States) also supported immunity for presidents-elect—particularly the need for the president not to be distracted by the fear and stigma associated with criminal proceedings while carrying out his unparalleled constitutional responsibilities. In presidential transitions, as Congress has legislatively underscored, a president-elect is preparing to assume those responsibilities from the first hours of a new administration.
Now that the newly elected president has exhausted his options to avoid the conviction, the sentencing will take place on Friday morning. Just like a number of analysts I have given an opinion that there are several reasons to overturn Trump’s convictions on appeal. The appeal can only begin after the sentence has been imposed.
