Prosecutors on Thursday urged the Supreme Court to allow Donald Trump’s sentencing in his New York hush money case to go ahead as scheduled on Friday morning. Emphasizing that Trump’s conviction rests on conduct for which he is not entitled to immunity, that Trump can attend Friday’s hearing “by video at the trial court’s invitation to minimize any burden,” and that Trump can appeal after he is sentenced, prosecutors wrote in a 38-page filing that there is no reason for the justices to take “the extraordinary step of intervening” now.
The filing came one day after Trump asked the justices to block the sentencing. Justice Sonia Sotomayor, who handles emergency appeals from New York, instructed the state to respond to Trump’s request by 10 a.m. on Thursday, signaling that the court is likely to act quickly.
The trial judge in New York, Juan Merchan, has ordered Trump to appear on Friday morning for sentencing on 34 counts of falsifying business records to hide reimbursements made to adult film star Stormy Daniels before the 2016 presidential election. In an opinion on Jan. 3, Merchan indicated that he does not intend to sentence Trump to jail time. Under Merchan’s proposed “unconditional discharge,” Trump would not face any real penalty, but the conviction would remain on his record.
Trump nonetheless sought to have the charges against him dismissed, pointing to his Nov. 2024 reelection and arguing that the charges were politically motivated. Merchan rejected that request, emphasizing that Trump himself was responsible for delaying sentencing until after the election.
After a state appeals court judge also declined to halt the sentencing proceedings, Trump came to the Supreme Court on Wednesday, asking the justices to intervene “to prevent grave injustice and harm to the institution of the Presidency and the operations of the federal government.” Trump asked the justices to extend the presidential immunity conferred in their 2024 ruling in Trump v. United States, covering a president’s official acts, to this case. (Trump also asked the New York Court of Appeals, the state’s highest court, to intervene, but a judge in that court turned him down on Thursday morning.)
As an initial matter, the prosecutors argued, the Supreme Court lacks the power to intervene in Trump’s case right now because there has not been a final ruling by the trial court – much less the final ruling, required under federal law, by New York’s highest court.
But even if the Supreme Court had the authority to intervene as a general rule, the prosecutors continued, Trump is nonetheless not entitled to have his sentencing proceeding put on hold. First, the harms to the public interest outweigh any harms to Trump from allowing the sentencing to go forward. If Trump is not sentenced before his inauguration on Jan. 20, the prosecutors contended, the sentencing may not occur until after he leaves office – a “particularly inequitable result” when Trump himself is responsible for the delay. On the other hand, they continued, the sentencing is likely to take “less than an hour” of Trump’s time by video, and Merchan has indicated that he will not sentence Trump to jail time.
The prosecutors dismissed as “baseless” Trump’s suggestion that he cannot be sentenced on Friday because he is the president-elect. “No judicial decision or guidance from the Department of Justice has ever recognized that the unique temporary immunity of the sitting President extends to the President-elect,” they stressed. Recognizing immunity for a president-elect would also conflict with the rationale behind presidential immunity, they write, which is to allow a sitting president to act without worrying that his conduct will later be the subject of a lawsuit.
Nor should Trump’s sentencing be put on hold based on his contention that prosecutors improperly relied on evidence of his official acts to obtain his convictions. Although the Supreme Court’s decision in Trump v. United States, the prosecutors asserted, indicated that evidence of official acts could not be used against a former president, it did not hold that an immediate appeal should be available when a defendant objects to the use of such evidence.
But in any event, the prosecutors continued, the state court in Trump’s case concluded that the evidence of Trump’s guilt was so “overwhelming” that any evidence of his official acts would not have made a difference to the jury’s verdict. And the evidence that Trump challenged after his trial, they added, could be admitted – for example, because it actually stemmed from his unofficial conduct, such as social-media posts about Michael Cohen, the president’s former attorney.
On Wednesday afternoon, ABC News reported that shortly before filing his request to put his sentencing proceedings on hold, Trump spoke with Justice Samuel Alito, who recommended one of his former law clerks for a job in the new administration. In a statement provided to ABC News, Alito said that he and Trump did not discuss Wednesday’s filing or any other cases before the justices.
The Supreme Court could act on Trump’s request at any time.
This post is also published on SCOTUSblog.
