Dear Reader,
Somebody needs to tell the Manhattan DA’s office it’s over.
The hush money case against Donald Trump is moving inexorably towards its final resting place – back on the same scrap heap it came from. But the DA’s office isn’t quite ready to give up just yet. In a court filing this week, prosecutors conceded that Trump’s sentencing should be postponed while the parties litigate whether he has constitutional immunity and other novel issues arising from his status as president-elect. That part is entirely reasonable.
But the marvel is that prosecutors somehow managed to type the following sentence without using comic sans font: “consideration must be given to various non-dismissal options that may address any concerns raised by the pendency of a posttrial criminal proceeding during the presidency, such as deferral of all remaining criminal proceedings until after the end of Defendant’s upcoming presidential term.” In other words, the DA argues, we might still want to sentence this guy after he’s done with his second term as president. In 2029.
This is not a serious request. There’s no black-letter law here; once again, Trump has put us firmly in the land of wild law-school hypotheticals come to life. But there’s no precedent for postponing a sentencing for four-plus years after a conviction. To the contrary, New York law requires that sentencing be held “without undue delay.”
The practicalities underscore the absurdity of the DA’s suggestion. Think ahead to 2029. We’ll have an 82 year-old, former two-term president facing sentencing on a non-violent, state-level Class E felony (the lowest level in New York) for conduct that occurred 12-plus years before. Who knows who’ll even be doing what by 2029. Will Alvin Bragg still be the DA? What will happen to the trial and defense teams by then? Will the judge still be on the bench? What will the country look like? Will everyone still be healthy and viable? There are a thousand variables at play. A lot changes in four years.
It’s over. Yes, there are legal issues that the parties and the courts can unwind if they care to – Trump’s immunity claim, first and foremost. But this case won’t carry on while he’s president, as the DA’s office has apparently recognized, and maybe not even while he’s president-elect.
In one sense, Trump got very lucky. He won the election and now, entirely unrelated to any substantive defense, he’s scot-free. But Manhattan DA Alvin Bragg caught a break too. Given the case’s inevitable demise, he’ll likely dodge the appellate process, and the real possibility that an appeals court would’ve thrown out his bizarre legal concoction on the merits.
The problems with the hush money case were multitude. It had been rejected by the feds at the Southern District of New York (Bragg’s old office, and mine) and even the FEC as a regulatory matter. Bragg’s predecessor as Manhattan DA could have charged the case but didn’t and later referred to star witness Michael Cohen as “more than a problematic witness.” The legal theory here was, shall we say, inventive. The DA took one expired state-level misdemeanor, stacked another expired state misdemeanor on top of it, then piled a federal campaign finance violation on top of that, and presto: an electroshocked state-level felony. No other state prosecutor, anywhere, ever, has charged a federal campaign finance crime in state court, either as a count unto itself or a predicate underlying offense. There’s good reason for that. Professor Rick Hasen, a liberal expert on election law, said (in a different context, unrelated to the Trump case) that “someone trying to use state legal process to find a criminal violation… for use of [federal] campaign finance money” could be not merely frivolous but “sanctionable” – meaning so outrageous that a court could fine a lawyer who even raised the argument (the very same upon which Bragg’s case depends).
In the end, the two people who benefited most from this case were the opposing principals. Regardless of the unsatisfying outcome for prosecutors, Bragg now has ensured that he has 100% name recognition, and will be re-elected for as long as he wants – perhaps to higher office – in heavily-blue Manhattan and perhaps beyond. It’s an unavoidable conundrum built into any system of partisan, elected local prosecutors. In any jurisdiction dominated by one political party – Manhattan always votes over 80% Democratic – any office-seeker has every rational incentive to go after an unpopular politician from the other side, no matter the legal contortions involved or the ultimate outcome.
Here’s where I make the standard disclosure that Bragg is a friend and former colleague of mine at the SDNY. I have always liked and deeply respected him, and I still do. We can’t possibly know for sure, but I strongly suspect that Bragg believes in this case. I don’t think he brought it out of ill intentions. But it’s impossible for Bragg – or anybody seeking election or reelection as a DA – to completely divorce the political implications from a high-profile charging decision.
The problem is not only that Bragg charged his case – which was plainly the least serious of the four indictments, even if we assume that it was legally valid – but that it was the first to be indicted and the only one tried. He poisoned the well for everything that followed. If you have four arguments, and you lead with the worst one, you’re sabotaging your own cause.
Beyond that, Bragg’s charge was such an obvious stretch that it played right into Trump’s persecution narrative on the campaign trail. Trump’s serial prosecutions inarguably helped him emerge from the pack and win the Republican primary. There are too many factors to credit or blame any one for Trump’s showing in the 2024 general election, his best ever. But it’s clear now that the general populace was entirely unmoved by the hush money case. Heck, in Manhattan itself – the scene of the crime! – Trump did five points better in 2024 than in 2020, moving from 12% to 17% of the vote. Trump gained more percentage points in Manhattan than he did across the entire country.
It’s over now. Bragg’s case will never reach a conclusion, and Trump is headed back to the White House. He’s not getting sentenced now or in 2029. The DA has done enough damage. It’s time to let it go.
Stay Informed,
Elie
