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Donald Trump will use his new status as president-elect in a renewed effort to challenge his upcoming sentencing on his Manhattan hush-money conviction, legal experts predicted Wednesday.
Trump, the only US president to be convicted of a felony, is scheduled to be sentenced November 26. He faces as little as no jail time and as much as four years prison for falsifying business records to retroactively hide a $130,000 hush-money payment to porn actress Stormy Daniels made two weeks before the 2016 election.
As Candidate Trump, he fought to delay his sentencing repeatedly, arguing that he was too busy and that his responsibilities as the GOP standard-bearer were too important for the case to interrupt.
He'll push that argument even harder as president-elect, as his lawyers continue to pursue time-consuming legal challenges through the state and federal appellate courts and potentially to the US Supreme Court, as legal experts said he is entitled to do.
"He's definitely going to throw that around now," said Charles Solomon, who was a Manhattan-based state supreme court justice for 33 years before his 2017 retirement.
"Wouldn't you use that argument if you were president-elect? Of course he's going to argue that he's about to become leader of the free world, and this is a special case, something that's never happened before," Solomon added.
"What he's going to try to do is adjourn, adjourn, adjourn," while his lawyers challenge his indictment, trial, and conviction on presidential-immunity grounds, Solomon predicted.
"And if he doesn't get an adjournment, he can appeal that," the former judge added. "He can seek delays in so many ways."
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Manhattan prosecutors should expect Trump to file a request in the next few days asking the trial judge to adjourn the November 26 sentencing because he's too busy ahead of assuming office, experts predicted Wednesday.
The judge, New York Supreme Court Justice Juan Merchan, is meanwhile weighing a previous defense request to toss the entire indictment, or at least the conviction. Trump's defense team has argued prosecutors exposed grand jurors and the trial jury to evidence that would be considered "official-act" evidence — meaning evidence involving actions Trump took in his official capacity as president — now barred under the SCOTUS presidential immunity opinion.
Prosecutors with the office of Manhattan District Attorney Alvin Bragg have countered that any official-act evidence used in their case amounts to "harmless error."
Merchan has said he will issue a written decision on Tuesday, November 12, a week before the sentencing date. Trump's lawyers have said they are prepared to file an immediate state-court appeal if he loses.
In a separate effort, Trump is fighting to have the case moved to federal court in Manhattan, again on presidential immunity grounds. A US District Court judge rejected that effort in September, and it remains under appeal by the Second Circuit Court of Appeals.
If Merchan wants to proceed with the sentencing — and he may view himself as required to on speedy-trial grounds — Trump can seek a delay in the state and federal appellate courts, said Michel Paradis, an attorney who teaches national security and constitutional law at Columbia Law School.
"Any of those tracks can get you to the US Supreme Court pretty fast, if that's his goal," Paradis said.
REUTERS/Jane Rosenberg
Merchan addressed the unique circumstances of prosecuting, trying, and sentencing Trump in September, when he agreed to delay the sentencing for a second time.
The original sentencing date was July 11, Merchan said in a four-page decision that set the November date.
"However, on July 1, 2024, the Supreme Court of the United States rendered a historic and intervening decision in Trump v. United States," a decision the defense needed time to respond to, Merchan wrote.
He decided to postpone the second sentencing date, September 18, until after the election in recognition of "the unique facts and circumstances of this case," Merchan wrote at the time.
"This matter is one that stands alone, in a unique place in this Nation's history," the judge added, alluding to Trump's presidential candidacy.
Trump's prosecution was already unprecedented when Trump was only a nominee and former president, said Mark Bederow, a criminal defense attorney and former prosecutor for the Manhattan district attorney's office.
Trump's election "takes it to a whole other level," Bederow said. "There's no playbook for any of this," he added. "A state judge is now potentially setting himself up to sentence the most powerful federal officer in the world."
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Even if the sentencing happens before Inauguration Day, it's highly unlikely that as a 78-year-old first-time non-violent offender, Trump will get a jail sentence, former New York City judges have told Business Insider.
"What's Merchan going to do? He's not going to argue that the next president should go to state prison," said Solomon, the former judge. "He's not going to have him do community service on weekends, and pick up trash in Central Park when he's not dealing with the Joint Chiefs of Staff."
Any sentence Merchan metes out would be put on hold, or "stayed," pending Trump's appeal of his conviction, which itself would take years, experts said.
Assuming Trump's sentencing delay bids fail, "Merchan will sentence Trump and Trump will appeal the conviction and sentence, first through the New York appellate courts and then the United States Supreme Court," said former federal prosecutor Neama Rahmani.
"It's more likely that Trump is fined and sentenced to no time and he has to appeal the conviction. This is all unprecedented," Rahmani, the president of West Coast Trial Lawyers, added as a caveat. "And we're in uncharted legal waters."
Trump's campaign and lawyers did not immediately respond to a request for comment. A spokesperson for Bragg did not immediately respond to a request for comment.
