Supreme Court Declines to Block Trump’s Sentencing Tomorrow

With the New York Supreme Court having already refused to intervene, president-elect Trump’s last hope to put a stop to a sentencing scheduled for tomorrow was the US Supreme Court. This afternoon, they issued a 5-4 decision that they would not get involved.

The decision on a 5-4 vote with four conservatives dissenting meant the conservative-majority court changed course after having previously handed Trump two big wins last year. Trump is set to return to the presidency on Jan. 20…

The three liberal justices were in the majority with Chief Justice John Roberts and fellow conservative Justice Amy Coney Barrett.

Here’s what the very brief decision says:

The application for stay presented to Justice Sotomayor and by her referred to the Court is denied for, inter alia, the following reasons.  First, the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal.  Second, the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of “unconditional discharge” after a brief virtual hearing. 

Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.

With no one left to appeal to, it looks like Trump will be forced to attend the sentencing (he was given the option of attending virtually by video) and will be formally declared a felon on 34 counts involving business records. The hearing is scheduled for 9:30 tomorrow morning.

As mentioned, Judge Merchan has already indicated that there will be no jail time or even probation. Instead Trump will get the unconditional discharge mentioned in the Court’s decision. This was pretty clearly an effort by Judge Merchan to salvage a symbolic win out of a case that would have permanently disappeared in another 10 days. No doubt he is celebrating this win as is DA Alvin Bragg. The media will also celebrate as after tomorrow they will incessantly refer to Trump as a felon. 

My own feeling is that these charges were specifically created to turn minor violations into felonies solely because Trump was the defendant. This is a case that former federal prosecutor Elie Honig made back in May.

…when you impose meaningful search parameters, the truth emerges: the charges against Trump are obscure, and nearly entirely unprecedented. In fact, no state prosecutor – in New York, or Wyoming, or anywhere – has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything. None. Ever…

…to inflate the charges up to the lowest-level felony (Class E, on a scale of Class A through E) – and to electroshock them back to life within the longer felony statute of limitations – the DA alleged that the falsification of business records was committed “with intent to commit another crime.” Here, according to prosecutors, the “another crime” is a New York state election law violation, which in turn incorporates three separate “unlawful means”: federal campaign crimes, tax crimes, and falsification of still more documents. Inexcusably, the DA refused to specify what those unlawful means actually were – and the judge declined to force them to pony up – until right before closing arguments. So much for the Constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial. (This, folks, is what indictments are for.)

In these key respects, the charges against Trump aren’t just unusual. They’re bespoke, seemingly crafted individually for the former president and nobody else.

There’s still a real chance that this contorted mess will be overturned on appeal, a process that can begin once the sentence is passed tomorrow.