Trump's Immunity Argument

 

Yesterday, Manhattan District Attorney Alvin Bragg made it clear he had no intention of going quietly. No obedience in advance from the office that obtained the only criminal conviction against Donald Trump before his election win ran out the clock on the three other criminal cases against him.

After delays to assess Trump’s claim that the case should be dismissed or at least he could not be sentenced because he was about to assume the presidency, the District Attorney flatly rejected Trump’s argument that the Supreme Court’s immunity ruling impacts their case and asked Judge Juan Merchan to proceed to sentencing. Nothing, the DA writes, prevents Trump from being sentenced before the inauguration.

Trump floated a series of arguments that had no relevance to the question of whether this case could proceed, including:

• Hunter Biden got a pardon, so the case against him can’t proceed (irrelevant for so many reasons, including the fact that Biden’s case was a federal prosecution where the president had the authority to issue a pardon after a defendant was adjudicated guilty).
• The Justice Department sent a lawyer to the Manhattan DA’s office to prosecute him (not true).
• DA Bragg is ignoring violent crime in the city (not relevant; not true).

The one argument Trump made that needed consideration, because of the uniqueness of this situation, is whether Supremacy Clause issues that could make it inappropriate to continue the case once Trump is in office apply before his inauguration as well. This was a typical sort of “give us an inch and we’ll take a mile” argument from Trump’s lawyers, who claimed a sort of global, timeless bar to any further action against him, even though Trump’s crimes predate his first ascension to the presidency, and he is currently not the president.

Bragg reached a clear conclusion in the time he requested from the court to review the issue. The is no special rule for people who will become, but aren’t yet, the president. He relied on the Supreme Court’s ruling in Trump v. U.S. that “presidential immunity under Article II of the Constitution does not extend to the President-elect. Article II vests the entirety of the executive power in the incumbent President,” to reach the conclusion that “The President-elect is, by definition, not yet the President. The President-elect therefore does not perform any Article II functions under the Constitution, and there are no Article II functions that would be burdened by ordinary criminal process involving the President-elect.”

Trump’s argument, and immunity itself, is based on the concern that prosecution would interfere with the performance of a president’s duties. So Bragg’s argument, which undercuts this rationale, is both persuasive and compelling. Trump has no duties to perform, so he has no excuse to avoid sentencing in a case in which he has already been convicted.

Trump, of course, tries to argue that sentencing would interfere with the transition. But as the DA underscores, Trump’s convictions are based on unofficial, pre-presidency conduct that does not merit immunity. His “request that this Court create a doctrine of pre-presidential immunity under Article II that attaches before a President-elect becomes President—and that applies where the defendant’s criminal conduct is wholly based on unofficial, not official, acts—has no grounding in Article II of the Constitution.”

Bragg asked Judge Merchan to reject Trump’s request to dismiss the case, arguing, “There are no grounds for such relief now, prior to defendant’s inauguration, because President-elect immunity does not exist. And even after the inauguration, defendant’s temporary immunity as the sitting President will still not justify the extreme remedy of discarding the jury’s unanimous guilty verdict and wiping out the already-completed phases of this criminal proceeding.”

Trump could be sentenced, with service of any custodial sentence deferred until he leaves office. Bragg argues that there are other options the court could use, including staying the sentencing until after Trump’s term in office as president ends.

What happens next is up to Judge Merchan. Trump will almost certainly try to run out the clock with appeals if he dislikes the ruling. But sometimes, moral victories are worth it for their own sake. Today, Alvin Bragg demanded, on behalf of all of us, that Donald Trump face some measure of the justice he deserves.

The Manhattan district attorney is not powerful outside of his own jurisdiction. He has little to bring to bear against the president of the United States. But Alvin Bragg, who won a hard-fought conviction, stood up for it today and stood up for it against Donald Trump. His courage should inspire us. It is a measure of the courage we are all capable of. We do not have to accept Donald Trump and the demise of the rule of law as inevitable.

We’re in this together,

Joyce Vance