By now you may have almost forgotten that, back on May 30, Donald Trump was convicted by a New York jury on 34 supposedly felony counts of “falsifying business records.” In the time since, the judge in the case, Juan Merchan, has occupied himself with denying various post-trial motions and with postponing the sentencing several times. Yesterday, Acting Justice Merchan issued an Order which, besides denying several of the outstanding motions, also scheduled sentencing for next Friday, January 10 — thus just over a week in advance of President-elect Trump’s second inauguration.
This Order is one of the most bizarre documents I have ever seen to issue from a court. Here you have what on the surface would seem to be one of the most significant, if not the most significant, criminal matters pending in the entire New York court system. It is a prosecution of a former President of the United States, and a man who, when the case was initiated, was known to be a candidate to return to the presidency in the next election. It involved not just one charge, but 34, all of them said to be felonies. (A “felony” is a criminal charge that carries a potential penalty of one year or more in prison.). Convictions were obtained from a jury on all 34 counts.
Enormous resources were devoted to the prosecution of this case. Here is a piece from The New York Times from April 22 with brief bios of the six senior members of the prosecution team. Unlike most Assistant DAs, these were not young people a few years out of law school looking to get some trial experience. Several had more than 20 years’ experience. One (Colangelo) was sent over from the Biden Justice Department to help out. Likely there were at least ten more lawyers in the background doing support work. The cost to the taxpayers of this effort likely ran to well in excess of $10 million, maybe in excess of $20 million. By contrast, a typical felony prosecution has just one Assistant DA assigned to it.
With that background, read this Order all the way through to page 17, and in the last paragraph before the Conclusion we get this:
[A] sentence of an unconditional discharge appears to be the most viable solution to ensure finality and allow Defendant to pursue his appellate options.
“Unconditional discharge.” That’s it? In other words, no penalty at all. Not just no imprisonment, but no probation, no fine, not even any “conditions” of any kind. (“Conditions” are a frequent component of criminal sentences, and can include things like reporting regularly to probation officers, meeting a curfew, not getting arrested again, and the like.).
But wait a minute. The entire purpose of a criminal prosecution and trial, or at least of legitimate ones, is to establish the basis for imposing penalties of some sort. If the result of the prosecution is unconditional discharge, you don’t need a dozen or more prosecutors and millions of dollars of expenditure and a month-long trial to get that. You can just let the guy go.
It was always obvious to those who looked at the charges that this was not a real prosecution, but rather a completely political effort to knock out the leading opposition candidate for the presidency. But up until now they kept up a pretense that it was real. Now even that pretense is abandoned.
As the Order states, the “sentencing” will create the predicate for Trump to appeal the convictions. The appeal will go first to New York’s Appellate Division, and if Trump is not successful there, to the Court of Appeals, New York’s highest court. I predict that one of those two courts will reverse on grounds that the purported “felonies” were not crimes as a matter of law. If Trump is not successful in either New York appeal, he also has a non-trivial appeal to the U.S. Supreme Court, on the ground that the alleged conduct constituting a federal election law violation (that supposedly turned state misdemeanors into felonies in this conviction) was not in fact a crime under federal law.
Even in advance of the appeals, it is now clear that this case has completely fizzled. Trump no longer faces any serious risk from it. If anything, the whole affair helped Trump in his bid for re-election.
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