Judge Juan Merchan has another tough decision to make in Donald Trump’s New York criminal case. After Trump’s lawyers last week pushed to delay sentencing in light of the Supreme Court’s immunity ruling, Manhattan District Attorney Alvin Bragg’s office says it’s deferring to the judge about whether to do so.

Merchan had set the former president’s sentencing for Sept. 18, two days after the judge is poised to rule on Trump’s motion to set aside his guilty verdicts based on the immunity ruling. In their letter last week, Trump’s lawyers said that if Merchan rejects their immunity-related motion, then they intend to immediately appeal, and they argued that it would be unfair to sentence their client in the meantime as he runs for president again.

In their response made public Monday, Manhattan prosecutors disagreed with multiple points in the letter but ultimately deferred to Merchan on whether to keep the Sept. 18 sentencing. The state noted that, unlike Trump’s federal election interference case that led to the Supreme Court’s July 1 immunity ruling, the issue here isn’t whether the charged acts in the so-called hush money case are immune from prosecution; the issue in New York is whether any official-act evidence used to prove Trump’s guilt of unofficial conduct ran afoul of the high court ruling such that Trump’s guilty verdicts need to be overturned prior to sentencing. Trump was found guilty in May of all 34 felony counts of falsifying business records.

“The Supreme Court’s recent decision did not consider whether a trial court’s ruling on that distinct evidentiary question is immediately appealable, and there are strong reasons why it should not be,” prosecutors wrote to Merchan in their letter dated Aug. 16.

“Nonetheless, given the defense’s newly stated position, we defer to the Court on whether an adjournment is warranted to allow for orderly appellate litigation of that question, or to reduce the risk of a disruptive stay from an appellate court pending consideration of that question,” the prosecutors continued, adding that they’re prepared for sentencing whenever it takes place.

Acknowledging the reality of the situation, prosecutors added in a footnote:

Assuming that defendant seeks an interim stay of the sentencing hearing immediately after this Court’s September 16 ruling, the People respectfully note that an appellate court considering such a request will understand that, without an interim stay, it would have to receive briefing and decide certain issues of first impression in one day.

So in addition to pointing out the “significant public safety and logistical steps by multiple agencies” needed to prepare for Trump’s court appearances, the prosecution’s letter suggests that keeping the Sept. 18 date could be all for naught, given Trump’s intention to immediately appeal the likely impending denial of his motion by Merchan. Of course, if Merchan sides with Trump on Sept. 16, then there won’t be a sentencing to contend with.

“The defendant’s newly-stated position concerning an immediate appeal … may mean that significant preparatory steps are taken, only to have such steps disturbed by appellate litigation,” prosecutors wrote, referring to a potential appeal of the motion on which Merchan is set to rule Sept. 16.

The prosecution’s letter is the latest reminder of how broadly the Supreme Court’s ruling in Trump v. United States can favor the GOP presidential nominee. While Trump has already benefited from that ruling, the full extent to which he does so remains to be seen in all of his criminal cases.

In the meantime, Merchan has yet another difficult decision to make in this unique prosecution when it comes to this scheduling matter. The judge stressed to the parties earlier this month (before Trump’s letter last week) that the Sept. 18 date remained unchanged. The prosecution’s letter could complicate matters for the judge, but we’ll learn from Merchan himself in an order that could come anytime now.

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