NY prosecutors appear open to yearslong delay in Trump hush money case
President-elect Donald Trump at the start of his criminal trial at Manhattan criminal court in New York on May 6. (Peter Foley/Pool Photo via AP)
NEW YORK - Manhattan prosecutors Tuesday said they will oppose a request by Donald Trump’s lawyers to dismiss his 34-count felony conviction but suggested they were open to postponing proceedings in the case until after the president-elect’s second term in the White House.
In a letter submitted to the court, Manhattan District Attorney Alvin Bragg’s office acknowledged the significant change in circumstances due to Trump’s election win Nov. 5. Trump, who will take office Jan. 20 and serve until early 2029, had been scheduled for sentencing next week and faced up to four years in prison.
Prosecutors asked for a pause in proceedings until after Dec. 9, when they said they would like to file their reply to Trump’s upcoming motion to dismiss the case. The case, in which a jury this year found Trump guilty of falsifying business records to hide a hush money payment to an adult-film actress, should not be dismissed, they said.
“The People deeply respect the Office of the President, are mindful of the demands and the obligations of the presidency, and acknowledge that Defendant’s inauguration will raise unprecedented legal questions,” the letter says. “We also deeply respect the fundamental role of the jury in our constitutional system.”
Prosecutors also said in their letter that no current law that establishes a president’s temporary immunity requires dismissing a post-trial criminal proceeding that began when the individual was not immune and is based on unofficial conduct. Existing law seeks a balance that preserves “independence of the Executive and the integrity of the criminal justice system,” they said.
Trump spokesman Steven Cheung said in a statement that Trump’s lawyers were seeking to have the case dismissed “once and for all.”
Merchan had not ruled on the filing as of Tuesday afternoon.
The court filing Tuesday was expected to help determine whether Trump returns to the White House after his inauguration Jan. 20 as the only president convicted and sentenced in a crime. Trump was charged in four criminal cases after his first term in office, but only the New York prosecution went to trial before his election win, apparently leaving the others in jeopardy.
A jury this year found Trump guilty in the hush money case, which was presided over by Merchan.
Trump’s conviction in May for falsifying business documents involves $130,000 paid to adult-film actress Stormy Daniels in the weeks before the 2016 presidential election to keep her quiet about their alleged sexual encounter years earlier, which he denies.
Manhattan District Attorney Alvin Bragg and his team could have asked Merchan to sentence Trump this month as planned or before he is sworn in on Jan. 20. In that case, Merchan may have issued a fine, finding it most practical or in the interest of justice to spare Trump jail or prison time, or a possibly burdensome probation process.
A fine would not likely have impeded Trump’s transition work or his future presidency, but critics could view such a punishment as insufficient.
Bragg did not specifically request postponing the sentencing until 2030, after when Trump would have resumed his civilian status. He asked for a general postponement, also known as a stay, of future events in the proceedings.
Prosecutors could have recommended that the verdict be thrown out and the indictment dismissed. Such a move would have run counter to the efforts of current and former prosecutors in the Manhattan district attorney’s office, and the decision by Bragg to move forward on the case.
Vacating the verdict could be considered by many observers as disrespectful to the process and to the jury that served for six weeks at Trump’s trial to come to a decision.
Criminal courts are also reluctant to disturb jury verdicts and case law firmly protects them except in rare, extraordinary circumstances. It is a mechanism used sometimes in wrongful convictions or if evidence comes to light after a conviction that could reasonably have changed the outcome of a defendant’s case.
“The weight of the successful election by President Trump has shifted sort of the balance of power in this dynamic at this moment in the case,” said Bragg’s predecessor Cyrus R. Vance Jr., whose office began investigating Trump’s business activities and the hush money matter during his first term.
“The truth of the matter is it’s hard to see an easy path forward that isn’t going to be very controversial,” Vance said.
Trump’s attorneys are likely to argue that jail at any point for him would be problematic and unjust.
A president is guarded by the Secret Service at all times with a security apparatus that screens locations in advance to sweep buildings and surrounding areas for potential threats. New York City’s main jail complex has a long history of problematic security breaches.
While it’s possible arrangements could be made for Trump to serve time elsewhere, his team would argue that any jail or prison facility or home confinement would be unworkable and unsafe, especially in light of two apparent assassination attempts this year.
Columbia Law School professor Daniel Richman said the most plausible option may be to hold off on sentencing until Trump is out of office, in part because of the Supreme Court’s recent broad immunity decision regarding presidents.
“Probably the most reasonable ask here would be to put the case if possible in abeyance for four years,” Richman said. “I’m not sure there are other choices.”
Merchan has held off on deciding on Trump’s motion to vacate the conviction and dismiss his indictment, eliminating the chance it could be retried, on the grounds that the district attorney built the case on evidence that is barred by the July 1 immunity ruling by the Supreme Court.
That ruling broadly defined official conduct by a president, and some of the documents and testimony used before the grand jury and at trial stemmed from 2017, Trump’s first year in office during his first term. Merchan would need to rule on that motion, which he was expected to do Nov. 12, but instead asked prosecutors to inform him by Tuesday how they wanted to proceed.
Trump has faced an avalanche of investigations and lawsuits in recent years and the Manhattan district attorney’s probe into his business activities is one of the oldest among them, spanning two elected prosecutors’ administrations and involving a number of current and former district attorney staffers.
The Trump Organization as an entity was also convicted by the office for tax fraud in 2022, a case indicted under former district attorney Vance but tried in court in 2022 after Bragg took office. Bragg’s team looked at a potential case related to a separate theory of business fraud but later turned its attention to the hush money matter.
Trump’s indictment in the false records case - made public on April 4, 2023 - was the first of four against him in state and federal courts.
Special counsel Jack Smith filed charges against Trump in Florida for illegally hoarding classified documents at his Palm Beach residence and private club Mar-a-Lago after his term ended and interfering with government efforts to retrieve them.
A Trump-appointed judge threw out the case on a what legal experts and the Justice Department believed was a wildly improper basis. Smith’s office was in the process of appealing it and it was seen as likely to succeed before Trump’s recent election win.
Trump also has open criminal proceedings in D.C., in another Smith case, for election obstruction related to his involvement in the Jan. 6, 2021, insurrection and in state court in Georgia for election interference. He was indicted there along with a number of allies but that case faced extensive delays and is still pending.
