In court papers made public Tuesday, District Attorney Alvin Bragg's office proposed an array of options for keeping the historic conviction on the books after Trump's lawyers filed paperwork earlier this month asking for the case to be dismissed.
They include freezing the case until Trump leaves office in 2029, agreeing that any future sentence won't include jail time, or closing the case by noting he was convicted but that he wasn't sentenced and his appeal wasn’t resolved because of presidential immunity.
Trump lawyers Todd Blanche and Emil Bove reiterated Friday their position that the only acceptable option is overturning his conviction and dismissing his indictment, writing that anything less will interfere with the transition process and his ability to lead the country.
The Manhattan district attorney’s office declined comment.
It’s unclear how soon Merchan will decide. He could grant Trump’s request for dismissal, go with one of the prosecution’s suggestions, wait until a federal appeals court rules on Trump’s parallel effort to get the case moved out of state court, or choose some other option.
In their response Friday, Blanche and Bove ripped each of the prosecution’s suggestions.
Halting the case until Trump leaves office would force the incoming president to govern while facing the “ongoing threat” that he’ll be sentenced to imprisonment, fines or other punishment as soon as his term ends, Blanche and Bove wrote. Trump, a Republican, takes office Jan. 20.
“To be clear, President Trump will never deviate from the public interest in response to these thuggish tactics,” the defense lawyers wrote. “However, the threat itself is unconstitutional.”
The prosecution’s suggestion that Merchan could mitigate those concerns by promising not to sentence Trump to jail time on presidential immunity grounds is also a non-starter, Blanche and Bove wrote. The immunity statute requires dropping the case, not merely limiting sentencing options, they argued.
Blanche and Bove, both of whom Trump has tabbed for high-ranking Justice Department positions, expressed outrage at the prosecution’s novel suggestion that Merchan borrow from Alabama and other states and treat the case as if Trump had died.
Blanche and Bove accused prosecutors of ignoring New York precedent and attempting to “fabricate” a solution “based on an extremely troubling and irresponsible analogy between President Trump" who survived assassination attempts in Pennsylvania in July and Florida in September “and a hypothetical dead defendant.”
Such an option normally comes into play when a defendant dies after being convicted but before appeals are exhausted. It is unclear whether it is viable under New York law, but prosecutors suggested that Merchan could innovate in what’s already a unique case.
“This remedy would prevent defendant from being burdened during his presidency by an ongoing criminal proceeding,” prosecutors wrote in their filing this week. But at the same time, it wouldn’t “precipitously discard” the “meaningful fact that defendant was indicted and found guilty by a jury of his peers.”
Prosecutors acknowledged that “presidential immunity requires accommodation” during Trump’s impending return to the White House but argued that his election to a second term should not upend the jury’s verdict, which came when he was out of office.
Longstanding Justice Department policy says sitting presidents cannot face criminal prosecution. Other world leaders don't enjoy the same protection. For example, Israeli Prime Minister Benjamin Netanyahu is on trial on corruption charges even as he leads that nation's wars in Lebanon and Gaza.
Trump has been fighting for months to reverse his May 30 conviction on 34 counts of falsifying business records. Prosecutors said he fudged the documents to conceal a $130,000 payment to porn actor Stormy Daniels to suppress her claim that they had sex a decade earlier, which Trump denies.
In their filing Friday, Trump's lawyers citing a social media post in which Sen. John Fetterman used profane language to criticize Trump's hush money prosecution. The Pennsylvania Democrat suggested that Trump deserved a pardon, comparing his case to that of President Joe Biden's pardoned son Hunter Biden, who had been convicted of tax and gun charges.
“Weaponizing the judiciary for blatant, partisan gain diminishes the collective faith in our institutions and sows further division,” Fetterman wrote Wednesday on Truth Social.
Trump’s hush money conviction was in state court, meaning a presidential pardon — issued by Biden or himself when he takes office — would not apply to the case. Presidential pardons only apply to federal crimes.
Since the election, special counsel Jack Smith has ended his two federal cases, which pertained to Trump's efforts to overturn his 2020 election loss and allegations that he hoarded classified documents at his Mar-a-Lago estate.
A separate state election interference case in Fulton County, Georgia, is largely on hold. Trump denies wrongdoing in all.
Trump had been scheduled for sentencing in the hush money case in late November. But following Trump’s Nov. 5 election victory, Merchan halted proceedings and indefinitely postponed the former and future president’s sentencing so the defense and prosecution could weigh in on the future of the case.
Merchan also delayed a decision on Trump's prior bid to dismiss the case on immunity grounds.
A dismissal would erase Trump’s conviction, sparing him the cloud of a criminal record and possible prison sentence. Trump is the first former president to be convicted of a crime and the first convicted criminal to be elected to the office.
Credit: AP
Credit: AP