There Was No Good Legal Reason to Delay Trump’s Sentencing

At first blush, it may seem curious that Justice Juan Merchan granted former President Donald Trump’s last-ditch request to delay his sentencing for his criminal conviction in Manhattan.

After all, supporters of the prosecution in the hush money case have generally taken a favorable view of Merchan’s handling of the matter — including his willingness to move the case forward over the years despite attacks on him and his family, as well as the endless and often frivolous efforts of Trump’s legal team to throw a wrench in the proceedings. Many Trump supporters, meanwhile, have adopted a caricature of Merchan — that of a political hack set on railroading Trump at every step of the way — created by Trump, his lawyers and pliant members of the conservative media.

On either account, Merchan should have proceeded to sentencing Trump before November, so what gives?

As a strictly legal matter, there was no good reason to delay Trump’s sentencing . But I don’t begrudge Merchan’s decision.

In a letter released Friday, Merchan cited a desire to avoid any appearance of trying to affect the approaching presidential election, but as a practical matter, it looks like the Manhattan district attorney’s office was mostly responsible for this result.

Prosecutors told Merchan several weeks ago that they did not oppose Trump’s request to delay the sentencing beyond the November election. That was a powerful signal to the judge, because it is first and foremost the responsibility of prosecutors to ensure that criminal defendants are sentenced in a timely manner.

Indeed, in his brief decision on the matter, Merchan made the relevance of the office’s position explicit, writing that “despite the People’s stated neutrality,” the district attorney’s office had “seemingly support[ed]” Trump’s request. Merchan further observed that prosecutors “certainly” did “not oppose” Trump’s request and that “a careful reading of” their response to Trump could “fairly be construed as a joinder of the motion.”

Merchan is correct about this. The DA’s office’s position made Merchan’s decision inevitable.

The result also diminishes the likelihood of a much-anticipated reckoning over whether Trump should spend some time in prison as a result of his conviction — a notion that was once practically unthinkable but that Trump himself managed to put into play over the course of the trial through his own misconduct.

Indeed, if the day ever arrives when Trump is sentenced — a big “if” given how close the election is likely to be — he has earned himself a few months behind bars.

From a purely legal perspective, Trump’s sentencing should have gone forward.

Trump’s argument for a sentencing delay boiled down to two points — both dubious. First, he plans to appeal on various grounds, including the argument that the conviction should be thrown out as a result of the Supreme Court’s ruling in July creating a zone of presidential immunity for criminal conduct related to so-called “official acts.” Second, Trump’s lawyers claimed that the only reasons to move forward with the sentencing as planned were “naked election-interference objectives.”

In fact, Trump was convicted over three months ago, which is a perfectly normal amount of time to pass before sentencing in a criminal case after a conviction. And appeals do not delay sentencings in the ordinary course, even if the defendant strongly believes that he is likely to prevail.

The solution in situations like this — when there is a potentially meritorious appeal in a complex and unusual criminal case — is a simple one: The judge sentences the defendant and lets him remain out on bail pending the resolution of the appeal. If the appeal is successful and the conviction is thrown out, then the sentence is vacated.

One obvious reason for this arrangement is judicial efficiency. Appeals can take years, and if the defendant requires sentencing, it is much better for everyone involved for that to happen while the facts and evidence are fresh in the parties’ and the judge’s minds.

The district attorney's office, however, put Merchan in an unenviable bind by effectively agreeing to Trump’s request to delay the sentencing. As noted earlier, it is usually the job of prosecutors to ensure that defendants are sentenced promptly after being convicted — notwithstanding any planned appeals, which are routine in criminal cases. The office’s acquiescence meant that Merchan himself would likely have borne the brunt of the attacks by Trump and his supporters for moving forward with a sentencing before Election Day.

Merchan, of course, has already been on the receiving end of a barrage of attacks all year thanks to Trump, his lawyers and many of Trump’s supporters, who have levied false claims of bias and ethical conflicts on the part of the judge.

Merchan has received dozens of death threats , and his daughter has been sucked into the vortex as well thanks to a convoluted and legally baseless theory alleging that the judge is somehow conflicted as a result of his daughter’s work in Democratic politics. The latest iteration of this argument offered by Trump’s lawyers focused on a tweet sent by one of Merchan’s daughter’s co-workers expressing support for Vice President Kamala Harris and Minnesota Gov. Tim Walz — a theory that was correctly described by the district attorney’s office as “bizarre” and having “nothing to do with the post-trial schedule.”

Given all this, put yourself in Merchan’s shoes as the presiding judge. Would you want to be the primary focus of the inevitable uproar over the scheduling of Trump’s sentencing — from Trump himself and Republican supporters in the political and media classes — before Election Day? If Trump eventually prevails over Harris in November, he will also have the powers and the political soapbox of the presidency at his disposal to make matters even worse for Merchan and his daughter in the years ahead.

On the merits, however, the sentencing should have gone forward as planned, with Trump granted bail pending appeal.

I say this as someone who was — and who remains — ambivalent about the commencement of the Manhattan district attorney’s prosecution.

But there is a critical distinction between the discretionary question of whether to bring a criminal case in the first place and how to proceed once the case is underway. At that point, the case should follow the ordinary process that every other American criminal defendant has to follow, including the timing and sequencing of post-trial motions, appeals and — yes — the sentencing.

The same crucial distinction applies to the question of what the sentence should be under the circumstances of any given case. Even if the judge or other observers themselves might not have brought the case as a prudential matter, the judge’s sentencing must respect the jurors’ verdict and account for the wide array of relevant factors for sentencing.

Those factors include the nature of the offense, the defendant’s history and characteristics and the need to ensure that similarly situated defendants are treated similarly. In the federal court system , judges are also explicitly required to consider (among other factors) the need to “promote respect for the law” when crafting a sentence — a consideration that should be central to any sentencing of Trump in the case.

So what should Trump’s sentence be?

Under the circumstances, Trump would ordinarily have a strong argument in favor of probation or some other form of punishment that would not require him to go to prison. Trump was convicted on 34 charges, but they were essentially one charge — that Trump had falsified his business records to cover up the payment to Stormy Daniels — based on multiple internal records that concerned that single underlying scheme. As a technical matter, the charges were just different iterations of a low-level felony offense under New York criminal law.

On top of all that, the case was legitimately novel (despite what some commentators have claimed); white-collar defendants in New York are generally treated leniently; and Trump is a first-time offender.

Trump faces two considerable problems, however, if he ever has his day in court for sentencing.

The first stems from the fate that Allen Weisselberg, his company’s former CFO, has suffered since early last year. Weisselberg was sentenced to two different five-month stints in Rikers Island as a result of conduct that was designed at least in part to benefit Trump — the first time after pleading guilty to a tax fraud scheme that also resulted in a criminal conviction of the Trump Organization , and the second time after pleading guilty to lying under oath in the civil business fraud trial against Trump.

Given Weisselberg’s fate, it is far from clear why Trump should get off with probation for the conduct that resulted in his own conviction.

Another big issue for Trump is that he behaved extremely inappropriately throughout the trial — attacking the judge, the prosecutors, the jury and the witnesses in an apparent effort to make the prosecution as difficult as possible for prosecutors and the judge, and to make a mockery of the proceedings in order to serve his closely intertwined personal and political agendas.

Trump repeatedly violated a gag order in the case that was supposed to prevent him from attacking the jurors and the witnesses, which resulted in multiple well-deserved rulings from the judge holding Trump in contempt. Merchan correctly noted at one point that Trump’s behavior threatened to “interfere with the … administration of justice” and “constitute[d] a direct attack on the rule of law” while also raising legitimate concerns over “the safety of the jurors and of their loved ones.”

On a daily basis during the trial , Trump also went in front of cameras and tried to mislead the public about what was happening. He railed against the case as a “Biden indictment” and “Biden prosecution,” and he referred to it as “election interference” designed “to keep me off the campaign trail.” None of this is true , though that hasn’t stopped Trump and his Republican defenders in Congress from advancing these claims.

Trump did not confine this misbehavior to the courthouse. He told supporters on the campaign trail that the trial was “fake” and “bullshit” and that he was in a “kangaroo court” in front of a “corrupt” judge. He posted on social media claiming that he was being persecuted by “fascist prosecutors” and “that DISGUSTING judge.” He reportedly told donors that he was being prosecuted as part of Biden’s “Gestapo administration.” He continued the routine, even after his conviction, in a typically incoherent speech that he delivered in Trump Tower.

The predictable upshot was that Trump and his allies created a toxic climate. One seated juror eventually begged off the case . Another prospective juror broke down in tears before being excused. It was no surprise when Trump supporters tried to dox the jurors after the verdict, and it is just as unsurprising that, so far at least, none of the jurors who rendered the verdict has publicly identified themselves.

These are not normal occurrences in criminal cases, and together they constituted a verdict against Trump all on their own.

There is no good reason for an American to feel any anxiety about serving on a criminal case, especially one involving a former president. The notion that people might actually fear for their health or safety by sitting on a jury is usually reserved for cases involving the likes of serial killers and mob bosses. The prospective and eventual jurors should have been able to do their civic duty free from attacks and harassment, but instead they were vilified by the former president and his associates.

Under the circumstances, Trump earned himself a few months on Rikers Island if he is ever sentenced.

If that day arrives, there will be plenty of complaining from Republicans and Trump-friendly media commentators, but the truth of the matter is that he and his lawyers will have no one to blame but themselves — even setting aside the significance of the underlying conduct that led to his conviction in the first place.

Trump behaved as if he was above the law — and as if the judicial system and its officers were disposable pawns in his self-serving effort to avoid being convicted and going to prison . There is no good reason for prosecutors or the judge to countenance that behavior. Literally no other criminal defendant in American history could have attempted — much less actually get away with — behavior like that.

At this point, Trump’s fate now turns on the outcome of the election. If he wins, you can safely assume that this case will be put on ice while he is in office. There is no realistic scenario in which he serves as commander-in-chief from a jail cell.

If he loses, things get riskier for him. The case should proceed to sentencing, and then at that point, an appeals process should kick off.

Exactly how long that will take is difficult to predict, but one considerable variable is that the U.S. Supreme Court might eventually weigh in, and it has become increasingly clear that the six Republican-appointed justices on the court are more than willing to create entirely new rules and spurious legal arguments in order to bail Trump out of his most serious legal entanglements. Perhaps the only thing that might deter them at this point is the possibility that their endless shenanigans might actually result in serious structural reform of the court .

In the meantime — at least until Election Day — Trump can declare victory in his aggressive effort to push off a legal reckoning this year. If he wins, the reckoning may never arrive.