No. of Recommendations: 4
Judge Merchan's decision to defer sentencing in Trump's New York State criminal conviction is highly problematic, for two reasons.
As a non-lawyer, I see things a bit simpler.
Merchan has this USSC case messing with his case. The USSC gave Presidents some rights that may not have been taken into account during the trial. So it makes sense to me that he needs to pause the sentencing to consider those rights. So the first question he needs to consider is how these new rights affect the case in his courtroom.
I think it might be completely in Merchan's discretion to use the established record in the case to decide if any of these new rights affect the case. After all, most (if not all) of the acts happened before Trump was President. There's certainly no immunity for any pre-Presidency acts. It may be the evidence that is causing problems. The USSC also gave some immunity to Presidential conversations. To the extent any conversations between Trump and others happened after he became President, those conversations might not be admissible in trial. I don't know how many pieces of evidence might fit this description. If it's very few and they were not all that consequential, it should be perfectly fine for Merchan to rule that any inadmissible evidence was immaterial to the case.
However, it's probably safer for Merchan to ask for briefings and argument on the issue. Let the prosecution and defense make their arguments on paper, and perhaps have a hearing and oral arguments as well. Then make a decision based on that.
My understanding is that the USSC decision instructed trial court judges to make decisions on what is immune and what isn't, what is admissible and what isn't. So Merchan needs to either issue a ruling based on the existing record, or create additional record (briefings and arguments) before making his decision. So I fully understand the need to delay sentencing until after this decision.
But he already received briefings (and oral arguments?) on this issue several weeks ago and had scheduled a date on which he would announce his decision. That date was Sept 16. This is where Merchan is making a mistake. Unless I've missed something, there is no reason to postpone this decision. He's got all of the info he needs to make his ruling. He should make it, and make it as scheduled.
Of course, Trump will appeal that decision, which makes the previously announced sentencing date irrelevant. But the new sentencing date is also irrelevant -- because it is still too close to the date for the decision on immunity. A decision which everyone knows will be appealed. A decision which he has all the necessary information to make. So make your decision, Juan. Being a judge is sometimes a tough job. This is one of those. Justice needs to continue moving forward whether there is an election or not. So keep it moving.
The ball is, quite literally, in your court.
--Peter
