Prosecutors from the Manhattan district attorney’s office urged a New York judge not to throw out President-elect Donald Trump’s criminal conviction in his hush money case, offering a variety of suggestions about how the case could proceed without interfering with his presidential duties.
One suggestion was for the judge to assure Trump that he will be spared jail time, which could help alleviate his “concerns” while he’s in office, they said in the filing made public Tuesday. But, they argued, there’s no reason to dismiss the case or vacate the verdict in May.
The “overwhelming evidence of defendant’s guilt and the critical importance of preserving public confidence in the criminal justice system, among many other factors, weigh heavily against dismissal,” the prosecutors from DA Alvin Bragg’s office contended.
They also knocked Trump’s claim that the case should be “immediately” dismissed because he’s already protected by presidential immunity.
“President-elect immunity does not exist. And even after the inauguration, defendant’s temporary immunity as the sitting President will still not justify the extreme remedy of discarding the jury’s unanimous guilty verdict and wiping out the already-completed phases of this criminal proceeding,” the filing said.
“[N]o principle of immunity precludes further proceedings before defendant’s inauguration. And even if judgment has not been entered at the time of defendant’s inauguration, there is no legal barrier to deferring sentencing until after defendant’s term of office concludes,” it said.
In a statement, Trump spokesperson Steven Cheung called the filing “a pathetic attempt to salvage the remains of an unconstitutional and politically motivated hoax.”
Trump’s attorneys have argued he already has immunity because there “is no material difference between President Trump’s current status after his overwhelming victory in the national election and that of a sitting President following inauguration.” They say the indictment on felony criminal charges and his subsequent jury conviction should be thrown out on immunity grounds.
Judge Juan Merchan indefinitely postponed Trump’s sentencing last month so both sides could present their arguments.
In Tuesday’s filing, the district attorney’s office said, “At most, defendant should receive temporary accommodations during his presidency to prevent this criminal case from meaningfully interfering with his official decision-making.”
Prosecutors presented a number of possible ways forward, including staying Trump’s sentencing until after he’s out of office.
“To be sure, the People do not dispute that presidential immunity requires accommodation during a President’s time in office. But the extreme remedy of dismissing the indictment and vacating the jury verdict is not warranted in light of multiple alternative accommodations that would fully address the concerns raised by presidential immunity,” their filing said.
A stay, they said, would exempt Trump “from any immediate obligations in this case during his time in office, while at the same time respecting the public interest in upholding the rule of law and preserving the meaningful aspects of the criminal process that have already taken place.”
The DA’s office also noted that Trump has already said he’d appeal any sentence and that in New York, “it is routine for appeals to be decided years after sentencing even without a formal stay of proceedings.”
Prosecutors also noted that Trump has already gotten the sentencing postponed for several months.
“Here, defendant can hardly complain about a delay in sentencing when he has affirmatively sought such delay — both before and after his reelection,” the filing said.
The judge could also alleviate some of Trump’s worries by deciding he won’t sentence him to any time behind bars, prosecutors said.
The filing said “many of defendant’s concerns stem from the possibility that he will face ‘potential incarceration.’ Here, however, because defendant has no prior criminal convictions and was convicted of Class E felonies, this Court is not required to impose a sentence of incarceration at all, and could even impose an unconditional discharge.”
That type of “limitation on the range of available sentences would further diminish any impact on defendant’s presidential decision making without going so far as to discard the indictment and jury verdict altogether,” the filing said.
The DA’s office also presented a novel alternative, suggesting Merchan could use a mechanism known as abatement that is practiced in Alabama and some other states when defendants die before sentencing.
Under the so-called Alabama rule, “when a defendant dies after he is found guilty, but before the conviction becomes final through the appellate process, the court places in the record of the case a notation to the effect that the conviction removed the presumption of innocence but was neither affirmed nor reversed on appeal because the defendant died,” the DA’s office said, saying it essentially “abates the criminal proceedings without vacating the underlying conviction or dismissing the indictment.”
Although abatement isn’t used in New York, prosecutors argued it presents a solution in which, as here, there are concerns about finality and punishment.
It’s unclear when Merchan will rule on the motions to dismiss.
Trump was convicted in May on 34 counts of falsifying business records related to a hush money payment his then-lawyer Michael Cohen made to adult film star Stormy Daniels in the closing days of the 2016 election.
Daniels claims she had a sexual encounter with Trump in 2006, which he denies.
In their court filings, Trump’s attorneys said the DA should follow the lead of special counsel Jack Smith, who moved to dismiss his two federal criminal cases against Trump after he won the election.
The prosecutors’ filing noted there are significant differences between their case and Smith’s cases, including that Smith’s cases hadn’t gone to trial.
Cheung, the Trump spokesman, said, “This lawless case should have never been brought, and the Constitution demands that it be immediately dismissed, as President Trump must be allowed to continue the Presidential Transition process, and execute the vital duties of the presidency, unobstructed by the remains of this, or any other, Witch Hunt.”
