Dear Reader,

Those of you following the criminal case against Donald Trump in Manhattan for falsifying business records may have had September 18 circled on your calendar as the date to watch. That was originally the date on which Trump was to be sentenced.

On Friday, September 6, however, Judge Juan Merchan granted Trump’s request to adjourn the sentencing until after the 2024 presidential election. The DA’s Office all but supported a postponement, outlining for the court many reasons in favor of an adjournment. Faced with what seemed to be an agreement by the parties to hold off on the sentencing, it should therefore not have been surprising that Judge Merchan rescheduled the sentencing for November 26. Sentencing adjournments happen routinely, particularly when the parties agree.

Some, however, have been critical of delaying sentencing. Norman Eisen, for example, wrote on August 20, before Judge Merchan’s decision, that “[t]here is no reason here to divert” from “prompt and orderly administration of justice” and pointed out that “[n]o other defendant would be allowed this pause.” In his view, “Trump should not receive preferential treatment merely because he is a presidential candidate.”

My NYU colleague, Chris Sprigman, tweeted that Judge Merchan “did a huge disservice to American voters” and “allowed the country’s worst people to have a heckler’s veto over the timely imposition of a criminal sentence.” He suggested the decision flouted the idea “that there is anything like equal justice.” He even suggested that “Merchan is engaged in CYA, plain and simple.”

The NY Times predicted reactions like these would be widespread, noting that “[t]he judge’s decision is likely to infuriate” certain liberals and “fuel accusations that Mr. Trump is above the law, shielded from the consequences of conviction, unlike any other felon.”

People with this viewpoint believe that a presidential candidate should be treated like anyone else and there was no reason for a delay in Trump’s case. But both premises are incorrect.

Consider first the latter point and whether there was reason to delay the decision. The sentencing was initially set to take place on July 11, but Judge Merchan postponed sentencing in light of the Supreme Court’s decision on July 1 announcing a broad conception of presidential immunity from prosecution. Trump filed a motion seeking to set aside the verdict in light of that decision and to adjourn sentencing until after resolution of the motion. DA Bragg’s office did not oppose the request to delay sentencing until after the motion was ruled on. That is how September 18 ended up being the revised date of sentencing.

As Judge Merchan noted, however, that put the sentencing date within 41 days of the presidential election.

It was therefore the Supreme Court’s late-in-the-Term decision on presidential immunity that brought the sentencing so close to the election. Judge Merchan still needs to rule on the implications, if any, of that decision on the case.

But perhaps even more critically, even if Judge Merchan concludes that nothing about the Supreme Court’s decision affects the case – which seems likely given that none of Trump’s acts related to the falsifying of business records were official acts associated with his role as president, and indeed most of the conduct occurred even before he was elected president – he would then need to move on to sentencing someone who is the Republican candidate for president.

As Judge Merchan noted in his decision adjourning the sentencing until after the election, the case “stands alone, in a unique place in this Nation’s history.” It is impossible to imagine how he could sentence Trump without it being interpreted by a huge segment of the population as an attempt to influence the election.

There is no reason to believe Judge Merchan would be trying to do anything of the kind – he has ruled over this case in an exemplary manner. But he was right that the appearance is as important as the reality. He adjourned the sentencing date “to avoid any appearance – however unwarranted – that the proceeding has been affected by or seeks to affect the approaching Presidential election.”

Delaying the sentencing avoids the risk that the impartiality of the court will be questioned and the danger that the sentencing would have an undue influence on the election, whether by advantaging or disadvantaging Trump.

Adjournments in cases are routine in the interests of justice, and as Judge Merchan noted, they occur “in any number of other criminal matters pending in this courthouse, particularly when unopposed, for reasons ranging from personal circumstances to the scheduling needs of the parties involved.” The reasons for adjournment in this case are good ones.

Prosecutors and judges should be sensitive to the ways in which their actions could interfere or be seen to interfere with the regular processes of democracy.

That is why the Department of Justice has a longstanding unwritten practice to avoid public disclosure of investigations or to seek indictments against candidates for office within 60 days of an election. Former Attorney General Loretta Lynch described it as follows: “The practice has been not to take actions that might have an impact on an election, even if it’s not an election case or something like that.” Former Deputy Attorney General Sally Yates has said she views the period as even longer to cover the stretch 90 days before an election, and the rule of thumb is if “you think it has a significant chance of impacting an election, unless there’s a reason you need to take that action now you don’t do it.”

To see why this policy makes sense, one need only recall what happened when former FBI Director James Comey violated that unwritten rule and reopened the investigation into Hillary Clinton’s use of a private email server just 11 days before the 2016 election. Clinton calls Comey’s announcement “the determining factor” in her loss.

In criticizing Comey’s decision to depart from the unwritten DOJ 60-day rule, a report by the Inspector General for the Department of Justice noted that “[i]t is in these moments – when the rationale for keeping to the ordinary course fades from view and the temptation to make an exception is the greatest – that the bedrock principles and time-tested practices of the Department” are most important to honor.

Judge Merchan understands that the upsides of a delay far outweigh the downsides. The prudent course is to avoid even a hint that one is interfering with an election, particularly when there is little cost to waiting. We will all find out Donald Trump’s sentence before Thanksgiving – and we can give thanks that Judge Merchan made a decision that preserves the integrity of the judiciary and the rule of law without doing anything to taint the democratic process.

Stay Informed,

Rachel