ANDREW McCARTHY: The Supreme Court is allowing Trump to be smeared as a criminal. But there is a catch
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Deeply divided Supreme Court has decided to allow New York to label President-elect Trump a convicted felon ten days before he enters the White House.
With Chief Justice John Roberts and Trump appointee Amy Coney Barrett joined by three of the Court’s progressives — Justices Sonia Sotomayor, Elena Kagan and Ketanya Brown Jackson — the Court gave the green light to New York State Judge Juan Merchan’s determination to convict the president-elect at 9:30 a.m. Friday morning. The ruling was prompted by a jury’s guilty verdicts in May on 34 counts of falsifying business records brought by Manhattan District Attorney-elect, a progressive Democrat, Alvin Bragg.
The four conservative justices – Clarence Thomas, Samuel Alito and Trump appointees Neil Gorsuch and Brett Kavanaugh – indicated they would grant Trump’s request for a stay.
SUPREME COURT REJECTS TRUMP’S ATTEMPT TO STOP SENTENCE IN NEW YORK V. TRUMP
ua ruling last week, rejecting Trump’s post-trial requests and scheduling sentencing for Friday morning, Judge Merchan indicated he would sentence Trump to unconditional release — meaning no jail time, no probation, no fines and no post-sentencing supervision. Merchan also ruled that Trump would not have to attend the sentencing in person.
The president-elect announced that he will not be in court in lower Manhattan on Friday. He will attend the sentencing remotely to ease the burden of the proceedings due to the ongoing transition leading up to Inauguration Day on January 20.
The majority rationalized that Trump would not be significantly harmed by the sentence for two main reasons. First, the Court did not rule on the merits of Trump’s claim that presidential immunity from the criminal prosecution was violated by the district prosecutor by introducing evidence at the trial about his official presidential acts. That is, Trump will still be able to appeal his immunity claim, along with various other claims of substantial procedural error. An appeal can’t be launched until after Trump is convicted and the sentence goes into effect, so the sentence will open the way for that process.
Second, the Court effectively locked Merchan into his stated preference for giving Trump a parole sentence. In theory, Merchan’s signaling of that intent (in a written opinion last week) was nonbinding — technically, the judge shouldn’t decide on a sentence until he hears from the parties at sentencing, which won’t happen until Friday morning.
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Still, the Supreme Court majority’s conclusion that the sentence represents a minimal burden on Trump’s presidential transition hinges on Merchan’s assurance that he was in favor of a no-jail, no-probation sentence. If Merchan changed his mind at this point and imposed a prison sentence, the High Court would consider it treason. Practically speaking, then, Merchan has no choice but to do what he indicated he would do.
The majority also relied on Merchan’s directive that Trump not have to attend the sentencing in person, meaning the proceedings should be brief and minimally intrusive Trump’s conduct of the presidential transition.
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There is no dissent from the four conservative judges. They probably concluded that the same considerations that led the Court to recognize presidential immunity in its July opinion (d Trump vs. the United States) also supported immunity for newly elected presidents—primarily, the imperative that the president not be distracted by the anxiety and stigma that accompanies criminal proceedings as he carries out his unparalleled constitutional responsibilities. In presidential transitions, as Congress has legislatively emphasized, the newly elected president prepares to assume these responsibilities from the first hours of the new administration.
Since the president-elect has exhausted all means to prevent the sentencing, it will resume on Friday morning. Like many analysts, I made a statement that there are multiple grounds for overturning Trump’s convictions on appeal. The appeal process cannot begin until the sentence has been pronounced.
