The extraordinary tussles between POTUS (the president of the USA) and the constitutional judicial review power (including the SCOTUS—the Supreme Court of America) is globally fateful. Manhattan Judge Juan M Merchan has scheduled a sentencing session for the president-elect, who is due to assume office on January 20, 2025. He will of course be advised to appeal any unfavourable outcome. But does the sentencing judge have any other option than now to proceed, the earlier dates of hearing having been postponed at the instance of the convicted person? He has already decided the date, with an option for digital presence by the convicted person.
The former POTUS and now the president-elect, Trump, was convicted by the jury on felony counts of falsifying his business records (by a $130,000 payment, made through his former personal lawyer in 2016) to inhibit a porn actor from going public with a story of having had sex with him a decade ago. However, he has consistently, and even aggressively, before and after the conviction, denied any wrongdoing.
In what may seem like an unusual gesture to Indian readers, the judge has already stressed that he is leaning towards “a sentence that would amount to just closing the case without any real punishment for a conviction”, and Section 65.20 of the New York Penal Law provides for this modality of a sentence of unconditional discharge, whereupon the defendant shall be released without any punishment, whether imprisonment, fine or probation supervision. A sentence of unconditional discharge is for all purposes a final judgment of conviction and the deciding judge will have to hear parties in the case and provide reasons justifying a conditional discharge.
Trump’s sentencing, initially set for July 11, 2024, has eventually confronted the judge with a need for final sentencing now scheduled January 10. In order to grasp Judge Merchan’s recent decision, it is necessary to step back a bit and visit the SCOTUS presidential immunity decision. A federal grand jury indicted former president Donald J Trump on four counts for conduct (which occurred during his presidency following the November 2020 election) alleging that he conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results. In response, he urged absolute presidential immunity, arguing that actions fell within the “perimeter of his official responsibilities” and are therefore immune from constitutional judicial review.
The SCOTUS (with an anguished and heroic dissent from Sotomayor, J, joined by Kagan and Jackson, JJ), observed (July 1, 2024) that it was essential to differentiate between a president’s “official” and “unofficial” actions, (pp. 16-32) and held that “under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution”. However, in marking this differentiation, the courts may not intrusively inquire into “the president’s motives”; nor may they “deem an action unofficial merely because it allegedly violates a generally applicable law” since presidents would be subject to trial on “every allegation that an action was unlawful,” thus “depriving immunity of its intended effect”. The SCOTUS categorically ruled that the “President enjoys no immunity for his unofficial acts, and not everything the president does is official. The President is not above the law.”
While Judge Juan M Merchan wrote that “the most viable option” is an unconditional discharge (a ruling that “records conviction unaccompanied by imprisonment, a fine or probation”), his final decision needs to be based on hearing arguments on both the sides.
Even if a decision to reach the verdict of “unconditional discharge” is made, the indelible mark of felony will remain, which will politically, and otherwise, remain inexpedient. A question has arisen whether Trump may, on accession to the presidency, issue a self-pardon; this would be most extraordinary, as the Constitution allows presidential pardons only for federal and not state convictions.
More knowledgeable legal analysts in New York state law and judicial review practices do not see much scope for successful appeal. Former Manhattan Judge Diane Kiesel is reported as saying that under New York law, this ruling “may not be appealed”, though that does not “mean he’s not going to try” (The Statesman, January 5,2025). Yet, one might tarry awhile with the possible arguments raised before Judge Merchan, which may be reiterated in any appeal.
At the outset, noteworthy is the spirit of generosity displayed by Judge Merchan, who has borne graciously the animated and zealous arguments on both sides (including attacks on the integrity of judicial process itself by the defendant. However, he feels constrained to reiterate what was said by Chief Justice Roberts in his 2024 Year End Report on the Federal Judiciary. He delineated “four areas of illegitimate activity”—which threatened “the independence of judges on which the rule of law depends:(1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments”. Judge Merchan courageously and rightly adds: “Dangerous rhetoric is not a welcome form of argument and will have no impact on how the Court renders this or any other Decision”.
The situation has, incidentally, been addressed by the chief justices of India, who have spoken, in their judgments, of threats to the integrity of judicial process in a similar vein. For example, CJI Khehar in the Sahara case and CJI Gogoi (addressing a sexual harassment charge against him) referred to “threats within” which erode judicial independence, even when the charges against the judges are rarely, probed so acutely as in Trump’s case. But such insidious threats become, in these dark global times, practices of governance and political opposition; one can only hope that they do not ever become the basic structure of the Indian governance and oppositional protest!
Judge Merchan negatived the argument that the president-elect is entitled to the same “immunity protections from a state prosecution as a sitting President”. He ruled that: “The evidence related to the preserved claims relate entirely to unofficial conduct and thus, receive no immunity protections” and “in the alternative, that when considered on the merits”, all the other claims are denied because they relate “entirely to unofficial conduct.”
In response (according to an ABC report, January 7, 2025), two defiant attorneys Todd Blanche and Emil Bove have written that: “Forcing a President to continue to defend a criminal case—potentially through trial or, even more dramatically here, through sentencing and judgment—while the appellate courts are still grappling with his claim of immunity would, in fact, force that president “to answer for his conduct in court” before his claim of immunity is finally adjudicated”. But it has been judicially declared under the SCOTUS immunity decision (from which there is no possible review or appeal) that the president-elect has no immunity for unofficial acts.
President-elect Trump, in social media and elsewhere, has volubly denounced the decision and called Judge Merchan “biased and incompetent”, and a “completely illegal and psychotic order”. In India, of course, the freedom of speech and expression is a valued fundamental right but the law made by Parliament may place “reasonable restrictions” on the grounds stated in Article 19(2) that right and contempt of court is one such ground. Accordingly, such remarks will be inconceivable, and actionable, in India. Obviously, canons of political correctness may be considered in America as a death blow on near-absolute right to free speech!
The larger issue is whether the president-elect has the same order of immunity as the POTUS himself (American electoral history rejects any feminization of POTUS!). And even as I write, the labyrinthine adjudicative process seems never to come to an end: Trump’s lawyers are before the appeals court, challenging Judge Merchan’s decisions upholding Trump’s conviction, on the basis that he is immune from criminal prosecution as he is the president-elect. Even a temporary stay will suffice because in a short while Trump would ascend to become POTUS and the proceedings would come to a grinding hold following the same constitutional courtesies which extend to the suspension or cancellation of allied presidential prosecutions.
In any event, we hear that the New York appellate judge has now denied Trump’s motion to delay his sentencing. His lawyers may now file an appeal before the appellate judges, First Department, to obtain time until noon January 20 to “pause” the decision, whereafter he can claim, as POTUS, immunity from all prosecutions and associated processes and proceedings.
Further, were further delaying tactics considered necessary, he may approach (to borrow Trump’s words) more “competent” judges who may deem it necessary to lift the limitation that only federal cases qualify for presidential pardons according to the Constitution, thus denying pardoning authority to state judicial proceedings. In any event, it seems that the oncoming future American jural history is unlikely to limit the scope and sway of imperial presidency.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer.