Should Trump's Sentencing Go Forward? Yes. Will It? We'll See
This morning, the New York Court of Appeals--the state's highest court--rejected Donald Trump's application in that court to forestall his sentencing on the hush-money-payment-coverup convictions, currently scheduled for tomorrow. The rejection, which was not accompanied by an opinion, is actually good news for Trump, because it removes one reason why the U.S. Supreme Court might reject his parallel request from that Court. So long as Trump was still seeking the same relief from the New York courts, SCOTUS might have rejected Trump's application on the ground that it was premature. With no more options for staying sentencing in the New York courts, Trump's procedural path to the Supreme Court is clearer.
Is he entitled to a sentencing delay? He offers three grounds, only one of which, in my view, even comes close to a basis for relief from SCOTUS. I'll consider them in a different order from how they're presented in Trump's brief.
First, Trump argues that he is entitled to a stay because the trial court erroneously admitted official acts evidence (principally the testimony of Hope Hicks) to prove its case, in violation of one of the holdings of Trump v. United States. But even if that is correct--i.e., even if the conviction should be reversed on the basis of the admission of that evidence--it doesn't require that sentencing be delayed.
New York State's SCOTUS response is very persuasive on this point: it explains that the evidentiary ruling of Trump v. United States, unlike the other portions of that case's holding, does not establish immunity. It is (rather obviously) a rule of evidence--and when a party alleges that a judge erroneously admitted evidence, that goes through the normal appellate process, not the kind of expedited or interlocutory process available in immunity cases.
Second, Trump claims that any time a defendant asserts presidential immunity, he is entitled to an automatic stay pending appeal. New York argues that there is no such existing rule, but that even if there were, it shouldn't apply to a case like the current one, in which the proceedings in the trial court are essentially over. I'll discuss this point further in addressing Trump's third contention.
That third contention is the claim that a President-elect has the same immunity as a sitting President. Note, this is not the immunity recognized by Trump v. United States but the immunity it has long been assumed that sitting presidents enjoy against all criminal prosecutions. The assumption of such immunity underlies the longstanding Department of Justice policy against indicting a sitting president, which, readers will recall, was the reason that Robert Mueller did not indict Trump in the Russian collusion/obstruction case (which then-Attorney General William Barr grossly mischaracterized to great effect).
The president-elect immunity contention has something to it. Presidential immunity serves to ensure that the president can focus on the nation's business, rather than becoming distracted by having to stand trial. Trump's brief highlights the various ways in which the transition from one president to the next places demands on the president-elect that are very similar to those on the president. They are not wrong that it would implicate some of the policies underlying presidential immunity if a president-elect were to face a criminal trial during the transition period.
However, to state the obvious, Trump is not now facing a criminal trial. He is facing a sentencing in which he will be sentenced to "unconditional discharge," i.e., he will face no prison time or even a fine. The only burden will be having to spend a few hours in a New York courtroom, if that. And then, so far as Trump is concerned, the case will be over. His lawyers can pursue his appeal of his conviction in exactly the same way that they would if there were no sentencing.
What Trump is really arguing, therefore, is that other presidents-elect in the future will need absolute immunity against all criminal proceedings, and that the rule that is broad enough to cover those hypothetical future presidents extends to him, even though he doesn't need such immunity.
That's not structurally crazy. Sometimes the best rule is necessarily overly broad relative to its justification, so that it collaterally benefits persons outside that justification. Moreover, as I've previously lamented, in dealing with Trump's immunity arguments in Trump v. United States, the Supreme Court was oddly focused on hypothetical future presidents rather than Trump himself. It is thus possible that five or six Justices will think there is something to the president-elect immunity argument.
To be clear, though, that shouldn't justify a stay. If the Court actually had a plenary case before it presenting the question whether a president-elect should have immunity, it might formulate a rule broad enough to cover Trump. But it doesn't have any such case. And in order to grant a stay, the Court must find irreparable harm in this particular case. Tellingly, Trump's brief asserts that he will suffer irreparable injury if no stay is granted but points to nothing concrete that will interfere with his duties as president-elect.
SCOTUS should deny the stay application. However, given its recent track record in Trump-related cases, I would not be surprised if the Court grants it.