Trump Plans Emergency Appeal to Block His Sentencing This Friday

As I described here, Judge Juan M. Merchan has scheduled the sentencing for Trump’s New York case for this Friday, January 10. Trump’s legal team has attempted to get the case overturned but instead of doing that, Merchan decided he would hold the sentencing this Friday but also revealed that Trump would not be getting any jail time or even probation. CNN’s legal analyst said that decision was strategic on the Judge’s part.

“It was a smart move by Judge Merchan to announce in advance that he is going to impose no punishment, and hold the proceeding remotely, because that undermines any effort by Trump’s team to argue in federal court that sentencing imposes some major burden,” said CNN senior legal analyst Elie Honig said.

There’s a DOJ tradition that sitting presidents don’t face prosecution. The New York case is a state-level case but it’s unlikely that any action will happen on it after Trump is sworn into office. In other words, Judge Merchan is trying to get this sentencing in at the last possible moment in a way that undercuts Trump’s legal reasoning for delaying it, i.e. by removing the threat of punishment.

The whole point of this, and the reason Trump’s team is trying to stop it, is that once he’s sentenced Trump technically becomes a felon. That is effectively the punishment that Judge Merchan is seeking to get in under the wire with this sentencing. 

But this scenario also means that Trump’s team doesn’t have to win the legal battle over overturning the case, he just needs to delay the sentencing for 10 additional days. Once he’s sworn in as president, the whole case will freeze and Trump will never be formally declared a felon (though as you’ve probably noticed, Democrats have been calling him that for months).

So Trump’s team has made a pro forma appeal to Judge Merchan to reconsider his ruling by this afternoon. But knowing that the judge is unlikely to change his mind, Trump’s team is also filing civil charges against the judge in an attempt to block the sentencing.

Mr. Trump’s lawyers disclosed in the filing that they planned to escalate their effort. If the judge does not pause the sentencing by 2 p.m. on Monday, the filing said, Mr. Trump will “seek an emergency appellate review.”

Hoping to persuade a New York appeals court to intervene, Mr. Trump’s lawyers plan to file a civil action against Justice Merchan and seek to freeze the sentencing, according to the filing…

Mr. Trump’s lawyers said they planned to both appeal Justice Merchan’s rulings and file an action against him as a so-called Article 78 petition, a special proceeding used to challenge decisions made by New York State agencies and judges. In essence, the president-elect would bring a civil case against the judge to unwind his recent decisions to uphold the conviction and schedule the sentencing.

All of this could happen very quickly because everyone is running out of time. The DA’s office is ready to respond to whatever Trump files this afternoon so the appellate court could act today as well.

The appellate court could act fast. An appellate judge could rule on the petitions as soon as Monday, deciding either to grant or deny an interim stay of the sentencing. While ordinarily that judge’s ruling would only be temporary — a full panel of appellate judges is supposed to evaluate Mr. Trump’s claims in the coming weeks — the case against the president-elect is running out of time.

Even if the appellate court acts quickly and denies his appeal today, Trump still has other options.

Mr. Trump has other options at his disposal, including asking the federal appeals court to intervene. He could also file a flurry of new litigation in federal court in hopes of rushing to the Supreme Court.

Again, Trump doesn’t have to win on the merits here, he just has to drag this out for 10 more days and the case will stall, probably forever.

Update: As expected, Judge Merchan denied Trump’s appeal.

New York Judge Juan Merchan denied President-elect Donald Trump’s request to delay sentencing in the New York v. Trump case. 

“Defendant’s motion for a stay of these proceedings, including the sentencing hearing scheduled for January 10, 2025, is hereby DENIED,” Merchan wrote in his decision Monday.