Bragg takes no position on delay of Trump sentencing as judge weighs impact of immunity ruling

Manhattan prosecutors say they won’t take a position on former President Donald Trump’s bid for a delay that would push his Sept. 18 business fraud sentencing until after the 2024 election.

Instead, prosecutors working for District Attorney Alvin Bragg said they would defer to Justice Juan Merchan’s discretion, acknowledging that the Supreme Court’s recent ruling on presidential immunity has complicated the process and could require a delay. Merchan is the judge overseeing Trump’s case.

“We defer to the Court on whether an adjournment is warranted to allow for orderly appellate litigation of that question,” Assistant District Attorney Matthew Colangelo wrote in a two-page letter to Merchan dated Friday but publicly released Monday, “or to reduce the risk of a disruptive stay from an appellate court pending consideration of that question.”

While the decision on timing will be up to Merchan, the prosecution’s stance appeared to increase the chances that Trump’s sentencing could slip until after Election Day — a result that would ensure none of Trump’s four criminal cases will reach that juncture until after voters cast their ballots.

The prosecutors’ letter makes no direct mention of Trump’s candidacy or the potential political significance of a delay, with prosecutors simply saying they “are prepared to appear for sentencing on any future date the court sets.”

Bragg’s decision not to take a position on the timing of Trump’s sentencing leaves the politically sensitive question of a delay in the hands of Merchan, whom Trump has repeatedly accused of bias and pressed — unsuccessfully — to recuse from the case.

The central concern prosecutors are confronting is Trump’s intention to seek an immediate appeal if Merchan rules against him on presidential immunity. Though the crimes Trump was charged and convicted of in New York — covering up hush money payments to a porn star by falsifying Trump Organization records — largely occurred before he became president, the trial featured days of testimony from top White House aides who discussed Trump’s conduct in the first months of his presidency.

In a separate federal criminal case against Trump, the Supreme Court ruled in July that most evidence of a president’s “official acts” could not be admitted in criminal cases and that judges have to conduct a painstaking review of such privilege claims before agreeing to enter that sort of evidence into the legal proceedings.

While there was little discussion at the trial of Trump’s official duties as president, some witnesses who worked for him in the White House did take the stand, including former communications director Hope Hicks and ex-Oval Office operations director Madeleine Westerhout.

Trump’s lawyers have argued that those witnesses’ testimony tainted the trial, while prosecutors said in their new letter that any error in admitting that testimony was “harmless” and doesn’t warrant overturning the jury’s decision to find Trump guilty on 34 felony counts of falsifying business records.

If Merchan rules that the verdicts should stand despite Trump’s immunity claims, Trump may ask an appeals court to immediately step in and postpone his sentencing. Whether he is entitled to an immediate delay of his sentencing is unclear, the prosecutors say.

“The Supreme Court's recent decision did not consider whether a trial court's ruling on that distinct evidentiary question is immediately appealable, and there are strong reasons why it should not be,” Colangelo wrote.

Colangelo also noted that scheduling Trump’s appearance in court requires “significant public safety and logistical steps by multiple agencies.” Trump’s past court dates and his six-week trial involved sizable detachments of New York Police Department officers, court police officers and Secret Service personnel. Those appearances also took place before Trump’s security was beefed up following an assassination attempt in Pennsylvania last month.

If an appeals court grants Trump’s request for a delay, the prosecutor added, it “may mean that significant preparatory steps are taken, only to have such steps disturbed by appellate litigation.”