Alvin Bragg should fight to sentence Trump

Stop treating Judge Merchan's denial of Trump's motion to dismiss as a major victory. The Manhattan DA should be pushing for Trump to be sentenced.

Technically, yes, it was a victory. Donald Trump moved to dismiss his criminal case against the Manhattan District Attorney’s office for the Stormy Daniels campaign cover-up (the case we should not call the “hush money” case¹), and Judge Juan Merchan denied it.

But it was not a real victory, because Manhattan DA Alvin Bragg and his office have yet to fight for one.

Convicted felon who faces a sentencing like any other convicted felon? Or ubermensch who gets special treatment because of ubermensch status?

Denial of a dismissal, by itself, simply means that Trump cannot claim that the charges were dropped, that he is no longer a convicted felon, and that he was exonerated. These are meaningful results, to be sure, but they are symbolic and semantic. Consequences should be more than mere words, especially when Trump is going to deny everything and scream at full volume to make sure his words drown out everyone else’s words. And last I checked, the New York Penal Code does not contain a provision that says “and all of these imprisonment penalties are just for normies; if a president or a CEO or some other VIP commits the crimes, you can convict them, but nothing happens to them, and the worst you can do is call them mean names.”

The case may stand, but as of right now, any sentencing of Trump has been delayed indefinitely — with the full agreement of the prosecutors.

Why? Because of the insidious, cancerous, corrosive, wrong-headed notion that a president should somehow be above the law and not face any criminal consequences — based on an over-reading of DOJ’s OLC memoranda from 1973 and 2000 plus a misapplication of the Supreme Court’s immunity ruling earlier this year in Trump v. US.

What could a real, zealous, spirited argument look like from Bragg? Let’s fantasize about what could have been (and what could still be, although I’m not holding my breath).

• First, the DOJ OLC memos are not controlling law on the court at all. They constitute internal guidance within DOJ, the equivalent of a section from an employee handbook. They’re not even binding on federal courts. They certainly aren’t binding on state courts or state prosecutors’ offices.

• In addition, the OLC memos should be considered in their historical contexts: they were each issued to determine whether the Department would prosecute the sitting president (Nixon, Clinton) who had appointed their senior leadership and to whom they all reported as chief executive. DOJ was being asked the question “can we prosecute our boss” and the answer came back “umm, nah, let’s not.” So take those with a gigantic grain of salt.

• Hence there is zero controlling law that says a sitting US president is immune from criminal prosecution. The court here in Manhattan should not create such law in anticipation of what the US Supreme Court might say; the New York courts must limit themselves to what New York law says about this matter, and if the defendant thinks he can get a different answer from SCOTUS, let him try.

• Second, speaking of SCOTUS, their immunity decision in Trump v. US is not applicable here. That decision held that presidents are immune from prosecution for official acts of the presidency, whereas non-official acts do not carry immunity. But here, Trump has been convicted for a series of non-official acts — most of which occurred before Trump ever took office.

• And even for the acts that occurred after January 20, 2017, merely being in the White House does not make a non-official act official. Michael Cohen was Trump’s personal and private company lawyer. Signing checks to your private lawyer for reimbursements for the hush money he paid to cover up your affair with a pornstar — those are not official acts. Neither is talking to other individuals about those payments or their success in covering up the affair and hiding it from the electorate, even if the person you were talking to (Hope Hicks) was on your official staff.

• If the court needs to hold an additional hearing to make a fact-based determination as to whether the acts were official or non-official, great, let’s do it. But let’s actually litigate this issue rather than shrugging and saying oh well, SCOTUS said something about Trump being immune so we should all just go home. And again, just because Trump might eventually be able to get a certain decision from SCOTUS does not mean that the court in Manhattan should anticipate that and bend its decision-making accordingly. The New York court should undertake its own independent analysis here, based on the facts and the framework from Trump, and render its own decision.

There, was that so difficult? Would it really kill the Manhattan DA’s office to try to make this argument, even if it might ultimately lose in front of Trump’s handpicked Supreme Court?

Judge Merchan, for his part, has now shown a clear sign that he thinks that Trump should not get extra-special treatment as a convicted criminal defendant just because he happens to have gotten his old job back with a start date in about a month. The argument outlined above could persuade him. And even if it doesn’t, then you appeal. You keep going, down to the very last motion, the very last argument.

So what is Bragg waiting for? It’s time to take a swing. And if it means you go down swinging, then go down swinging. But right now, they’re forfeiting the game and slinking back into the locker room rather than fighting — because they’re afraid of losing. But a loss is a loss, whether it’s by forfeit or by defeat. And the latter at least retains one’s dignity.

1. Why not? Because paying hush money is not in itself a crime, and calling it “the hush money case” thus minimizes what Trump stands accused of. The crime was the cover-up — Trump and his then-attorney Michael Cohen creating a new shell company, creating an agreement between the shell company and Daniels’s law firm (using pseudonyms to mask Trump and Daniels), creating a secret side letter to along with the agreement (making it clear how the payment was actually going to work), then taking the reimbursement to Cohen and “grossing it up” to make it look like compensation for legitimate legal services, slicing that compensation up into 11 monthly payments rather than paying him one lump sum, and doing all of that against the backdrop of the catch-and-kill strategic understanding between Trump, Cohen, and David Pecker from the National Enquirer, all to stop the public from knowing about Daniels’s affair with Trump in October 2016 on the eve of the 2016 election and in the wake of the Access Hollywood tape, right at the exact moment that the revelation of the Daniels affair might finally have sunk Trump when he barely scraped the narrowest of victories. Yes, that is what 34 felony counts of business fraud looks like.