It’s so dumb, it’ll probably work.
The post Trump Demands Stay Of Sentencing Based On Retroactive Presidential Immunity appeared first on Above the Law.
(Photo by Yuki Iwamura-Pool/Getty Images)
On Friday, Justice Juan Merchan rejected Donald Trump’s demand to delay his sentencing in the false business records case. In the order, the judge excoriated Trump’s counsel, Todd Blanche and Emil Bove for “language, indeed rhetoric, that has no place in legal pleadings.” Noting their inflammatory characterization of the court’s rulings as lawless and unconstitutional, Justice Merchan invoked Chief Justice Roberts’ end of year screed against judicial “intimidation.”
“Dangerous rhetoric is not a welcome form of argument and will have no impact on how the Court renders this or any other Decision,” Justice Merchan wrote.
This morning, Blanche and Bove, who are soon to be leading the Justice Department, threw up two middle fingers to the court again, describing “grave constitutional problems with this proceeding raised in our prior pleadings, including forcing a jury on the Defendant in record time and without proper process.”
Screeching about a “politically-motivated prosecution that was flawed from the very beginning, centered around the wrongful actions and false claims of a disgraced, disbarred serial liar former attorney, violated President Trump’s due process rights, and had no merit,” they added that “While it is indisputable that the fabricated charges in this meritless case should have never been brought, and at this point could not possibly justify a sentence more onerous than that, no sentence at all is appropriate based on numerous legal errors—including legal errors directly relating to Presidential immunity that President Trump will address in the forthcoming appeals.”
So much for decorum.
In today’s nastygram, Blanche and Bove demand that the court stay all proceedings under Trump v. US to allow their client to take an immediate appeal. As per usual, the pleading is a bit muddy on the facts and the law. In fact, this is not a response to last week’s ruling, in which the court refused to adjourn sentencing based on retroactive presidential immunity that extends backward into the presidential transition period — or at least, not really. Trump does demand an automatic stay to litigate the claim of “absolute sitting-President immunity from criminal process, extended to the President-elect.” But his main claim is that he’s entitled to a post-trial stay to appeal Justice Merchan’s December refusal to vacate the conviction because it rested on evidence of official presidential acts, which should have been excluded.
Blanche and Bove go to great lengths to fudge the line between being charged for official conduct and being convicted of non-official conduct based on evidence of official acts. Justice Merchan ruled that those claims were: untimely, because raised too late; incorrect, because the presumption of immunity was overcome; and irrelevant because the evidence of Trump’s guilt was overwhelming and so inclusion was harmless error.
In essence, Trump isn’t making an immunity claim, he’s making an evidentiary one. This may be a distinction without a difference — the law is whatever the Supreme Court says it is, and these days that’s a moving target. Moreover, the purpose of a pretrial stay to litigate immunity is to spare officials from the burdens of trial — which is wholly irrelevant at this juncture. But Blanche and Bove bluster their way through it, huffing that “undergoing a criminal sentencing is the most extreme example of ‘hav[ing] to answer for his conduct in court,’ — exactly what the doctrine of Presidential immunity forbids and why an automatic stay is mandated.”
A cynical person might suggest that Trump’s lawyers had gamed the system by not appealing the immunity ruling in December when it was issued, instead waiting until the last possible second to seek review in hopes of running out the clock. That person might also note the inherent tension between the claims that it violates presidential immunity to force Trump to litigate criminal appeals after he’s sworn in, and the demand that sentencing be stayed to allow him to litigate his criminal appeals.
Trump demanded a response from the court by 2pm, warning that he’ll “file an Article 78 proceeding as well as a direct appeal in the Appellate Division, First Department, seeking review of the Court’s two recent incorrect rulings on Presidential immunity” if he doesn’t get his way. As of this writing, neither Justice Merchan’s response nor any appeal has hit the public docket.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
