Dear Reader,

How perfect that the Manhattan DA’s hush money case against Donald Trump is about to end with nothing. 

This’ll be among the least suspenseful of all sentencings. Judge Juan Merchan has announced in advance – quite pragmatically, actually – that he intends to sentence Trump to an unconditional discharge. To translate that bit of legal jargon: nothing. 

Orange jumpsuit fantasies have long been abandoned by even the most wishful of crusaders. There won’t be any probation either, or fines, or restitution, or community service. It’s gotten so bad for Alvin Bragg’s “dangerous,” “bullshit” prosecution (to quote Republican Mitt Romney and Democrat John Fetterman, respectively, in a refreshing bit of moderate bipartisan consensus) that its few remaining cheerleaders are reduced to meekly spinning this sentence of nothing as a positive outcome for the DA. 

Winners and losers aside, Merchan’s sentencing decision makes good practical sense. The judge recognizes the constitutional reality that he cannot proceed with a criminal case against the sitting president, so it’s sometime in the next ten days or never. (The judge rejected Bragg’s bonkers suggestion that the court might put the sentencing on hold until Trump finishes out his second term as president in 2029.) Obviously Merchan was in no position to imprison the sitting commander-in-chief. Nor could he have imposed lesser, non-incarceratory restrictions; good luck compelling the president to report weekly from the White House to pee in a cup for a New York County probation officer. 

By holding the sentencing now, Merchan puts a stamp of finality on the trial phase of the case. This will allow folks to label Trump a “convicted felon.” if anyone’s still into that after the entire effort backfired so spectacularly on the political stage. Under New York procedure, a conviction becomes official upon sentencing – though not quite final, with appeals still pending.

In that sense, the judge’s decision to hold the sentencing now is a benefit to Trump, despite the former and future president’s predictable, bitter protestations. If Trump had succeeded in his frantic efforts throughout the week to postpone sentencing , or if the judge had dismissed the indictment altogether (as Trump’s lawyers had asked), Trump would’ve been unable to appeal. But with sentencing completed, he can challenge the constitutionality of his trial and conviction. The president-elect has made clear he intends to do just that, posting on social media, “I still have confidence that the Appellate Courts will bring JUSTICE TO AMERICA!!!” 

I’m not so sure the entire fate of all-caps “JUSTICE IN AMERICA!!!” rides on the outcome of the eventual appeal here, but Trump’s got a valid gripe when it comes to Bragg’s preposterous prosecutorial gambit. Trump, you’ll surely recall, was convicted of making lawful hush money payments through an attorney to a porn star and then logging those payments in his private company’s internal records as “legal fees” rather than, I suppose, “Hush Money Payments to Porn Star.” Even the notoriously aggressive feds at the Southern District of New York – where both Bragg and I used to work – gave this mess a pass years ago, during the early days of the Biden administration. So too did Bragg’s predecessor as Manhattan DA, the dynastic Democrat Cy Vance, who said publicly the prosecution’s star witness “could be an exploding hand grenade for the DA’s office.” The Federal Election Commission declined even to take regulatory action. 

All Bragg had to do to construct a criminal charge was take one expired state-level misdemeanor (falsification of business records), pile on another expired misdemeanor (state-level election interference), and then stack a federal campaign finance crime on top of the whole mess. Presto: a Class E – the lowest of five levels – New York state felony, maybe. 

Bragg offers grand prosecutorial pronouncements about “our solemn responsibility to ensure that everyone stands equal before the law.” Indistinct pablum aside, the fact is Bragg’s prosecution of Trump for an underlying federal campaign violation in a state court is a first in all of U.S. history. It has never been attempted by any state-level prosecutor, ever, against any candidate for any federal office, ever. Rick Hasen, a leading election law expert who leans decidedly left, wrote that this is a major constitutional problem and Bragg’s case is “a mistake both legally and politically.” Indeed, Trump’s got a real shot to get his conviction thrown out on appeal. 

With Trump about to retake office, there’s widespread and quite valid concern about whether he will deploy the prosecutorial might of the executive branch to cobble together petty, bogus cases meant to torment his political foes. Bragg’s conduct should be no excuse; it’s not as if there’s some ledger that must be balanced with equally egregious abuses of prosecutorial power pointed in the other political direction. But the fact is, Bragg has already done precisely what many (myself included) worry Trump might someday do to others.  

I don’t think Bragg failed here because he is stupid or corrupt. I’ve long known him personally and professionally, and he is neither of those things. Quite the opposite, in fact. 

I think Bragg brought this case because he panicked. After news leaked in 2023 that Bragg had decided not to bring a criminal case against Trump over his real estate valuations, a disloyal deputy in the Manhattan DA’s office quit and did a publicity tour bashing the decision. The political blowback against Bragg was fierce in deeply liberal Manhattan. Bragg found himself desperate for something, anything to appease his local base and ensure his own political survival. And when Bragg decided to electroshock this cadaver of a case back to life in early 2023, Trump hadn’t yet been charged with anything else, and it looked like he just might slip by entirely unbothered by any indictment. And, hey: somebody’s got to nail this guy for something, somehow, in certain strains of  liberal thinking of that moment.

Yes, Trump will be a felon as of 10:30 a.m. or so today. As my friend and colleague Barbara McQuade wrote earlier this week in defense of the DA’s prosecution, “future generations of school children will look at posters like the one I saw in third grade. Those kids will see two presidents depicted twice, Cleveland and Trump. But only one will be a felon.” That teacher should add that Trump made it back on that poster, in some small but significant part, because of Bragg’s historic prosecutorial overreach.  

Stay Informed,

Elie