Former President Donald Trump’s effort to dodge accountability for his crimes is still going strong. It’s not just his unhinged campaign for president, which represents an attempt to avoid prison. He has also continued pushing for delays in all four criminal cases against him, most recently demanding his criminal sentencing in Manhattan be delayed until after the election. Because there is no basis for this latest delay under the law and Trump’s political purposes are so obvious, the court should reject this out of hand.
Trump was convicted back in May on 34 felony counts of falsifying business records, all to cover up interfering in the 2016 presidential election by paying hush money to an adult film actress to hide their affair. Having already successfully postponed his sentencing from July 11 to Sept. 18, Trump’s attorneys recently asked Judge Juan Merchan to further postpone it until after Election Day. In response, Manhattan District Attorney Alvin Bragg’s office on Monday deferred to the judge’s discretion but noted “there are strong reasons” that Trump’s position should be rejected.
No other defendant would be allowed this pause.
Under New York sentencing law, the test Merchan must apply is whether the delay is “reasonable.” It is anything but. For starters, Trump’s motion for delay cites the Supreme Court’s recent decision in Trump v. U.S., which provides at least presumptive immunity for official acts. On Sept. 16, two days before the current sentencing date, Merchan will rule on Trump’s motion to vacate his conviction on the basis of that immunity ruling. Trump’s lawyers claim that he cannot be sentenced until after any appeals of the Sept. 16 decision are fully and finally resolved.
Huh? Whatever may be said about the mix of official and unofficial acts at issue in the 2020 attempted coup, which was the subject of the Supreme Court’s decision, the Manhattan case clearly concerns unofficial conduct. As the DA’s office explained in a separate and meticulously detailed filing last month, a presidential candidate conspiring to interfere in an election by paying hush money to a porn star and then falsifying business records to cover it up simply does not describe the commission of official presidential acts.
Moreover, although Trump complains about the admission at trial of evidence relating to events that happened in the White House (such as a conversation Trump had with an official adviser in 2018), this evidence was actually about non-presidential conduct, as I have explained elsewhere. Trump and his lawyers repeatedly commit the fallacy that any time he does something, that makes it official conduct. But that is not what the Supreme Court ruled, and in fact at the Manhattan trial prosecutors adeptly limited the questioning to unofficial conduct.
As Bragg’s office stated in responding to Trump’s request to delay his sentencing, it “is correct that the denial of immunity from prosecution is immediately appealable” — i.e., it would be appealable before trial. “But here, in contrast to defendant’s criminal case in D.C., the question of defendant’s immunity from prosecution is not presented.” That’s because the dispute ultimately concerns the admission of evidence about events during Trump’s presidency, and the DA’s office explained that 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.”
Criminal appeals are generally decided after defendants are sentenced. There is no reason here to divert from that well-established practice that ensures the prompt and orderly administration of justice. No other defendant would be allowed this pause. Neither should Trump be if we are to live up to the American principle that no one is above the law.
In fact, delaying the sentencing until after the election might serve to increase appearances of impropriety.
Trump’s other arguments fare no better. He also says that the sentencing should be delayed until after the election to “prospectively mitigate the asserted conflicts and appearances of impropriety” that it alleges would infect any sentencing hearing held before the election. But the defense’s repeated claims that Merchan is biased have been consistently rejected by all authorities that have reviewed them, including the New York Advisory Committee on Judicial Ethics, which previously concluded that “the judge’s impartiality cannot reasonably be questioned.”
In fact, delaying the sentencing until after the election might serve to increase appearances of impropriety. For example, if Trump is elected and then not sentenced to a period of incarceration (although I have argued incarceration would be appropriate given his crimes), the public might think he unfairly received a lighter sentence because he was elected president.
Trump also asserts that the sentencing should be delayed until after the election because doing so would supposedly prevent prosecutors “from filing a sentencing submission,” which would argue what sentence Merchan should impose, before the judge rules on Trump’s motion to vacate his conviction. The defense contends that such a submission would be “personally and politically prejudicial to President Trump and his family, and harmful to the institution of the Presidency.” But any such submission would not be public. Besides, Trump should not receive preferential treatment merely because he is a presidential candidate. Many criminal defendants are sentenced every day while they might be applying for jobs, yet they are not permitted to postpone their sentencing hearings until after they have completed all rounds of their job interviews. That this applicant is seeking the presidency of the United States does not change a thing. The purposes of sentencing, whether retribution, rehabilitation, deterrence or incapacitation, are all frustrated when that sentencing is delayed. Given that Trump was convicted of feloniously interfering in the 2016 presidential election and charged federally and in Georgia with trying to overturn the 2020 presidential election, the court should specifically deter him from committing more election crimes in 2024 by handing down its sentence without additional delay, even if the imposition of that sentence is ultimately delayed pending his appeals. A sentence of incarceration, which I have argued is otherwise merited, could protect American voters from imminent election crimes. Moreover, the sentencing hearing is likely to provide valuable information about not only the crimes of which Trump was convicted but also other aspects of his background. It will also allow voters to learn what the judge who oversaw his trial thinks about the seriousness of his crimes. American voters deserve to have that information before they decide whether to vote for defendant Trump in November. Trump should be denied the special treatment he seeks to delay his sentence simply because he is a presidential candidate. To avoid undermining public faith in the rule of law and fairness of the criminal justice system, Trump’s sentencing should go ahead as scheduled.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles. 
