A tale of two New York City cases

A quick update from NYC, where the NY AG is refusing to capitulate to Donald Trump, and the Manhattan DA is still capitulating but pretending not to.

Just as we were concluding our look into the current state of play of the cases against Trump, we received two updates from New York City yesterday. The New York Attorney General’s office has categorically refused to stand down from its $454 million civil fraud case, and the Manhattan DA’s office has categorically refused to stand up for itself.

Let’s break down what happened.

NY AG - Trump’s lawyers had recently written a letter to the NY AG asking them to dismiss the civil fraud case “for the greater good of the country.” As I wrote the other day, this was a telling move — showing that Trump in fact lacks any real argument here.

The NY AG responded appropriately, briefly noting that there is no presidential immunity for civil cases, per Clinton v. Jones — and as icing on the cake, there is no possible imposition on any official presidential duties, as the case is now in the appeals process. No more document production, no more depositions, no more trial appearances or testifying.¹ Appeals are handled by lawyers, and they mostly involve a lot of sitting around and waiting for decisions from appellate courts.

There is definitely a possibility that Trump will make a frontal assault on Clinton v. Jones in hopes of getting it overturned by today’s Supreme Court — and that he will argue that the current appellate process for the NY AG case should be stayed in the meantime. But it is clear that the NY AG is not simply going to surrender just because Trump yells “immunity,” and in the current dark days through which we’re marching, this qualifies as good news.

Manhattan DA - The news from the Manhattan DA is not good, regardless of how some mainstream media articles made it sound.

Yes, the Manhattan DA’s office filed a 79-page brief opposing dismissal of the criminal case, but in truth, this was a very large nothingburger — and worse than that, it provided Judge Juan Merchan with multiple off-ramps where he can drive the Trump case to a shameful final destination.

Trump at his arraignment, when no one held the door open for him. Sadly, it was one of the few times where he was treated as an ordinary criminal defendant rather than getting special treatment.

Let’s be clear on what did not happen here: at no point has the Manhattan DA fought for the principle that Donald Trump should be sentenced to the fullest extent of the law just like any other criminal defendant convicted of 34 felony counts. They also have not taken a strong position that neither the Supreme Court’s immunity decision nor the Department of Justice’s misguided immunity policy have any controlling legal authority on this proceeding, where New York State (not ruled by DOJ internal memos) convicted a defendant for misconduct having to do with his personal life and business (and thus not involving any “official acts” triggering immunity under Trump v. US).

Instead, they spent 79 pages arguing why the case should not be dismissed and vacated outright — but why it can result in a variety of outcomes that fall far short of any kind of legitimate justice:

• They proposed that Trump be given a sentence without any prison time, giving him a slap on the wrist, whereas literally any other defendant in his shoes would likely get anywhere from 6-18 months in prison.

• They proposed that the case could be stayed until the end of Trump’s term.

• They proposed that the case could be abated, not dismissed — this would just be a technicality, noting that the conviction removed any presumption of innocence but that the case was terminated before sentencing or appellate process due to presidential immunity.

Sure, these outcomes would be better than an outright dismissal. But that’s like saying you’re happy you don’t have Covid and you only have the flu. There are no good outcomes being presented here.

The real problem is that the Manhattan DA is asking not even for half a loaf but for the merest crust of bread — rather than asking for the whole damn loaf. They are giving Judge Merchan the easiest of ways out. The way our system works, judges are supposed to rely on the adversary process, rather than coming up with their own options. If one side says dismiss, and the other side says give him a slap on the wrist, the judge is not going to impose a standard prison sentence — he’s going to choose something in the spectrum of options presented by the parties’ lawyers.

Here, if true justice is a 10 and total injustice is a 0, Trump’s lawyers are proposing 0, and the Manhattan DA is proposing 1. And so the judge is going to end up somewhere between 0 and 1 — never mind that the jury’s verdict was a 10.

So, by not putting up any kind of real fight, the Manhattan DA’s office virtually guarantees that Donald Trump will not receive any kind of real accountability for his crimes. And even the fanciest 79-page brief does not change that.

Instead, Judge Merchan is almost certain to choose one of the Manhattan DA’s off-ramps — and once again, a prosecutor is letting Donald Trump off the hook.

1. And by the way, even if there were to be a civil case where Trump was called upon to testify, he absolutely can be. After the Supreme Court decided Clinton v. Jones in 1997, a witness in the Jones civil case ended up having an even more explosive story of her own, Monica Lewinsky. And in January 1998, Jones’s lawyers took a deposition of then-President Bill Clinton — at the White House. Then in August 1998, after Independent Counsel Ken Starr subpoenaed Clinton to testify before the grand jury he had empaneled, a deal was struck for Clinton to testify voluntarily and remotely, again from the White House. So there is very clear precedent for Trump to participate personally in legal proceedings even while president.