The Justice System Still Has a Chance to Punish Trump

One of the many troubling consequences of Donald Trump’s re-election is that he will largely avoid responsibility for his conduct in four criminal cases. No other criminal defendant in American history has had the authority to shut down his own investigation. This is an unprecedented and heartbreaking affront to the principle that no one is above the law.

A potential exception is the case of New York State. A jury in May found Trump guilty of 34 felony counts of falsifying business records to conceal hush money payments made to adult film star Stormy Daniels ahead of the 2016 election.

Judge Juan Merchan recently granted the parties’ joint request to halt the New York hearings, while both sides consider what to do in light of Trump’s re-election. Trump’s lawyers argue that the case should be dismissed outright to avoid “unconstitutional obstruction of President Trump’s ability to govern.” Even the district attorney’s office said it wanted time to consider how the court should balance the “competing interests” of a jury verdict with the needs of the presidency.

By being very careful, Merchan avoided a pre-election penalty that could affect the election. However, the election result does not change anything about the criminal case. Now that the election is over, punishments must be given as soon as possible.

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Once in office, Trump could drop federal investigations into himself and his allies. He threatened to use the Justice Department to pursue his political opponents. He may seek to bend the justice system to his will in unprecedented ways. However, this does not mean that the Prosecutor or Merchan should do this. “obey in advance” By reversing the jury’s verdict.

Trump’s lawyers actually argue that the election has erased the entire picture, that the people have spoken, and that all criminal matters should be dismissed. His former attorney general, William Barr, made a similar point. Interview with Fox Newswhere he called on prosecutors to drop all pending criminal cases. “The American people have made their decision about President Trump,” Barr said. He said prosecutors should “respect the public’s judgment and immediately dismiss the cases against President Trump.”

What nonsense. The election was not a “verdict” on Trump’s guilt. A majority of voters apparently concluded that Trump’s criminal cases were not disqualifying; just as sexual assaults, pandemic responses, efforts to overturn the last election, and many other things are not disqualifying. This doesn’t mean these things don’t happen or that Trump isn’t legally and morally responsible.

No doubt all accused public officials would like to be able to say that winning the next election means everyone should forget about the alleged crimes. Our system doesn’t work like that. The election is not a jury verdict and winning the election does not make you less guilty.

When it comes to Trump, the New York case may be the rule of law’s last stand. Trump is confident that, as president, he will quickly bring to a close two ongoing federal cases — the classified documents case in Florida and the Jan. 6 case in D.C. He may not even need to do it himself. Special Counsel Jack Smith and the Justice Department have already begun discussing how to end the cases based on DOJ policy that a sitting president cannot be prosecuted.

Even if the current Justice Department tries to keep the cases alive in some way (for example, by agreeing to pause them until Trump is removed from office in four years), the new Trump Justice Department will simply dismiss the cases. Trump could pardon other defendants and collaborators, or even try to pardon himself.

Unlike federal cases, Trump cannot unilaterally eliminate state investigations. The Georgia case is currently riddled with challenges over whether the prosecutor should be disqualified for conflict of interest. But while the Justice Department’s policy against prosecuting a sitting president is not binding on the states, the reality is that a state will not be allowed to try a sitting president. If prosecutors survive the objections, the case against the remaining defendants could proceed within a year or two. But any potential trial against Trump is certain to be delayed at least until he leaves office, and who knows if there will be any desire to pursue the case at that point?

This is leaving New York. Until Merchan granted the latest extension, he was scheduled to rule Nov. 12 on Trump’s argument that the Supreme Court’s presidential immunity ruling required dismissal of convictions. This claim is unlikely to come true because almost all of Trump’s relevant behavior in the case occurred before he became president. Although Trump has argued that several pieces of evidence from his trial should be blocked because of immunity, those allegations are unlikely to derail the convictions. Assuming Merchan rejects the impeachment request, sentencing is set for November 26, pending the election results being cast into doubt.

The punishment must continue. Trump’s lawyers’ argument that the entire case should be dismissed if Trump is re-elected is nothing more than an assertion that a president (or in this case, the president-elect) is above the law and can never be held criminally liable. Thanks to the election results and the Supreme Court’s immunity ruling, this horrifying claim may be true most of the time; but it doesn’t have to be that way in this case.

The defense’s claim that the sentence would unconstitutionally impede “Trump’s ability to govern” is laughable. Trump is not president yet. He is not responsible for managing anything other than his transition. A sentencing hearing will last several hours in a New York courtroom; probably less than a round of golf. He could squeeze it in.

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The defense may be arguing that if Trump were sentenced to prison, it would interfere with his duties. It is true that imprisonment can be problematic. If Merchan had been inclined to sentence Trump to prison, he likely would have kept that sentence pending an appeal. When Trump took office, the state would likely not be allowed to imprison a sitting president even if the convictions were upheld.

In the unlikely event that Merchan tries to immediately imprison Trump, a supreme court would undoubtedly intervene. Federal courts are no more likely to allow a state to imprison the president-elect than they are to allow a state to imprison the president.

But Merchan has no option to punish the president-elect other than imprisoning him. He could impose a fine and/or place Trump on probation, suspending any probationary service until Trump leaves office. He could even impose a prison sentence, but similarly postpone it until Trump is now president.

At this point, the details of the punishment are less important than the punishment to be given. Justice requires completion of the criminal process. The defendant was found guilty by the jury. The next step in the normal process is for the judge to impose a sentence. This will formalize Donald Trump’s record as a convicted criminal. Even if Trump is not given a serious penalty, this is an important legal and historical statement.

Once convicted, Trump’s lawyers may appeal the conviction. This could proceed with virtually no interference from Trump. The appeal process will be handled by lawyers and will not interfere with any of the presidential duties. Convictions can be upheld or annulled on appeal, but there is no reason why the ordinary criminal process cannot continue.

A criminal could become president of the United States, although for most of us the idea is unthinkable. As Trump’s lawyers and supporters would say, the people have spoken. But just as Trump’s criminal cases did not prevent him from being re-elected, the election should not prevent the conclusion of the regular criminal process in New York. This punishment must continue.