The Daily - Judge Delays Trump Sentencing Until After Election

Episode Date: September 10, 2024

Last week, a judge in Manhattan announced that he was delaying the sentencing of Donald J. Trump until after the election. It is the only one of the four criminal cases against the former president that will have gone to trial before voters go to the polls.Ben Protess, an investigative reporter for The New York Times, discusses Mr. Trump’s remarkable legal win and its limits.Guest: Ben Protess, an investigative reporter for The New York Times.Background reading: Judge Juan M. Merchan delayed Trump’s sentencing until Nov. 26, after Election Day.Mr. Trump owes the delay in part to his legal resources and political status. It raised a question: Is he above the law?For more information on today’s episode, visit  nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From the New York Times, I'm Sabrina Tavernisi, and this is The Daily. Last week, a judge in Manhattan announced he was delaying the sentencing of former President Donald Trump until after the election, in the only one of the four criminal cases that will have gone to trial before voters go to the polls. Today, my colleague Ben protests on Trump's remarkable legal win and its limits. It's Tuesday, September 10th. So Ben, we got some news last week in the Trump trial that had ended in 34 felony convictions.

Tell me what happened. So Trump was supposed to be sentenced this month. And this was all in the Manhattan criminal case where he was convicted of covering up a hush money deal with a porn star, as you might recall. And so he faces up to four years in prison. But on Friday, this surprise announcement comes. A legal and political victory for Donald Trump. The judge in the case, his name is Juan Mershon,

he comes out and he says, actually the sentencing is gonna be delayed. New York justice Juan Mersand has ruled former president Donald Trump will be sentenced November 26th, three weeks after the election. And now instead of it occurring in September, a couple weeks from now, it's going to be scheduled for November. Judge Marchand writing his decision best advances the interests of justice, noting this matter is one that stands alone. So really what this means is that Trump will not be sentenced

prior to the election after all. And so it all adds up to the fact that we have this first former American president to be a felon, and here he is, he's running for office yet again, and voters are going to be heading to the polls soon, and they won't know what his punishment is. That seems very consequential. Let's try to unpack that.

So thinking back to May when he was first convicted, the timing of his sentencing at that point didn't really seem to be in question. Like it was just the course of the regular legal process. So what happened? So you're right. Originally he was scheduled to be sentenced on July 11th, but on July 1st, you might recall, the Supreme Court issued this very consequential

landmark decision that said that a former president cannot be prosecuted for official acts that they committed as president while in the White House. This is the immunity decision. Exactly. And so, you know, there's still much to be learned and interpreted from this decision, but basically within hours, Trump's lawyers in New York moved to throw out the conviction because they think now this Supreme Court opinion gives us their client immunity, even in this case. And that means in their minds that the judge cannot sentence him as planned on July 11th.

Basically they feel that the judge needs to first consider whether or not to throw out the case altogether. And is there any validity in the argument that Trump's lawyers are making? I mean, that the Supreme Court immunity decision could undermine his conviction? Look, it's a long shot. Almost all the evidence in this case involves the time period before he was president. It involves payments to a porn star that were made before his presidency. That being said, he did make a few payments to reimburse

his fixer, Michael Cohen, for the hush money while he was president. Now, is that an official act? I think most people, including the judge, Juan Marchand, will conclude no, that was not an official act. But his lawyers will still try it. And they'll argue that the prosecutors did try to introduce evidence that involved Trump's time in office. So after he filed the immunity petition, that's what pushed the sentencing back all the way to after Labor Day, September 18th. That's when we were supposed to see him receive his punishment. Got it. So it sounds like this whole immunity decision is essentially a delay tactic for

Trump and his legal team. As you're saying, Trump can't be sentenced until the judge rules on immunity and essentially decides whether the immunity decision would have any role in undermining the hush money case. Correct. That's exactly right. I guess I'm wondering how much is Election Day a consideration in the delays for this judge?

Election Day made this a lose-lose proposition for the judge. Either he was going to alienate one half of the country or he was going to alienate the other half. So if he had not delayed, he would have faced accusations from Trump and Trump supporters that he was interfering in the election. And his decision to delay essentially drew a lot of criticism and a lot of concerns from people across the country, especially on the left, that Donald Trump is above the law, that he is not subject to the same rules as every other criminal defendant in the country.

Now the judge, I think anticipating these questions and these concerns, sort of used his opinion as an endorsement of the court system to work around, to navigate around the political sphere. And he wanted to remove the sentencing from this highly charged partisan environment leading up to the election. So he sort of calls the court system a fair,

impartial, apolitical institution. He talks about the sentencing dispelling any notion that there are political considerations involved in this really important sentencing decision. In his mind, yes, the sentencing has to be done and yes, this election has to occur. But the fact that they were on this collision course seemed clearly to him to be problematic. He notes that there was this unique time frame that the case was in and there's no way around that. But he was trying to essentially, it seems, remove it from that unique time frame. And do we know, Ben, just legally, how much the judge is allowed to even be thinking about the election when he's

making this decision? So we just have no precedent for it. And we just don't know kind of what was in his head too about what he thought he was allowed to do under the law. So instead of sort of making a legal decision, he seemed to sort of make what was a practical decision without much consideration to any case law, because quite frankly, this has never happened before. Okay, so Judge Marshawn has had to contend with a lot of competing pressures here. Sentencing and

the timing of that, the immunity request and the timing of that, but also the election. Tell us about Judge Marshawn. What's his approach on the bench, Ben? The judge's politics are interesting. So he is a former registered Republican. He's a former prosecutor. He's a law and order guy. He's somebody who believes in the rule of law. And so what we have is a picture of somebody who he is currently a Democrat as, you know, almost all judges are in New York County. But he is somebody who's I think best described as a moderate and the people we've talked to who know him consider him

that way. Now, I should note that Trump and his lawyers have sought to get the judge removed from the case because they claim he has a conflict of interest because his daughter is a democratic political consultant and that one of her former clients was Vice President Kamala Harris. There's absolutely no reason to suspect that her work had any impact on his handling of this case. And by the way, this is not just me saying this. This is the New York State Judicial Ethics Commission who's ruled on this matter and has determined that the judge does not have a conflict of interest, which is why the judge

has now three times rejected Trump's efforts to oust him from the case. Okay, so now he's gonna be sentenced in November after the election. What's gonna happen? Like, what is the potential outcome of this sentencing? Truthfully, we don't know. But a lot of people think that he's not going to serve a single second in jail. There's an argument that he is who he is, his political status and his wealth mean that he's going to wiggle out of this without any real

consequences. But I'll just say a lot of our reporting colleagues and I have done suggests that is not a foregone conclusion. There is still very much a chance that Donald Trump will serve time for his We'll be right back. So Ben, you said that you think it's possible Trump could actually get jail time. What makes you say that? So just looking at how other cases like his have been resolved, other falsifying business records cases, plenty of people have served jail time and have gone to Rikers Island

and have had to serve weeks or months behind bars for this crime. Now his case does stand alone. There is no other case that we're aware of for falsifying business records to cover up a sex scandal, but there have been plenty of falsifying business records cases and we're able to look at them and we're able to sort of see where these cases go. And I will also

note that Judge Marshawn is not someone to impose easy punishments, including for white collar offenses. And how's Trump's case fit into all of this? Well, he's a first time offender. He's a senior citizen. He's been convicted of a crime. That's a nonviolent crime And so he has many arguments in his favor that he should not be incarcerated on the other hand He's also someone who behaved poorly in the judge's courtroom he was subject to a gag order that he violated repeatedly and He basically showed pretty broad disdain for the rule of law and

the judge's authority. And so when you add those factors in, and you add in that he's shown no remorse for his crimes that he's been convicted of, I think you could have a judge who's just had to put up with months of Trump behaving badly in his courtroom, say, you know what, I'm drawing the line here and I'm sentencing this man to time behind bars. And when you say time behind bars, what kind of time are we talking about, Ben? We're probably talking less than a year. We're probably talking weeks or months.

And some of it could be part of his probation. But I don't think we're talking a long sentence here. And I don't expect Donald Trump to end up on Rikers Island. I think he's more likely to be in a secure, safe facility with protection from the Secret Service. Okay, so Ben, play this out with me. So the judge is now gonna sentence after the election. Let's say Trump wins the election.

What happens then? Like, are we talking about, you know, a president-elect serving jail time? I think that's highly unlikely. I think that it's unworkable to have someone who's the president-elect also incarcerated. It would cause all kinds of political chaos. I mean, can you imagine him picking his cabinet while he's behind bars? Right. It would be a real problematic situation.

That's true. But I think if he were elected, I think what you would see is a delayed situation where even if he were sentenced on November 26 as planned, the judge would postpone the serving of that sentence until after his second term in office. Again, we've never had to deal with a situation like this. This judge has never had to deal with a situation like this. So we don't know exactly, but I would be stunned if the judge actually made him serve

a single second behind bars while he was president-elect. Ben, can he pardon himself, I mean, if he does become president? I think that there's a lot of questions of whether he could pardon himself for the criminal cases he's been charged with federally. I think that in this particular case, which is a state case based out of the Manhattan District Attorney's Office, there's no way he can pardon himself.

This case is beyond the reach of the presidential pardon power because it is brought by a local district attorney's office. Got it. Okay. So there district attorney's office. Got it. Okay, so there's no way he can pardon himself. What happens if he loses? If he loses the election, he will still try to appeal his conviction and that might delay out his sentence even further and he may not immediately have to go to jail or anything like that.

But it would mean that his sentence would almost certainly be served sooner than if he had won. And so obviously he wants to win because he wants to be president. But one of the potential benefits to him of winning is that it keeps him out of jail. Right, Ben, it's kind of incredible. There've been so many cases against Trump

that he's managed to delay for one reason or another, you know, the documents case, the election interference case. But this really seemed like the one that had finally caught up with him. Yet here we are, where even after he was put on trial and found guilty of 34 felonies, he still managed to delay the consequences. Exactly. And this was the one case that sort of dented that legal teflon that he's built over decades, over a half century, to be honest. And all the time that we hear, oh, Donald Trump is above the law and Donald Trump, the rules don't apply to him. This is why, this is why people feel that once again,

he managed to escape some accountability. Now I will say this, he will go into the election as the only former president, and potentially future president, to be a convicted felon. And that's not nothing. This is a case that Trump tried extensively to get delayed and to get thrown out. And yet it

didn't. The jury, a jury of 12 New Yorkers sat in judgment of him and pretty swiftly came back and concluded that he was guilty of the 34 felonies he was accused of. And there's no erasing that. And so I think that while there are these concerns and these laments that Trump is above the law, it's worth remembering that he is also still at the end of the day, a felon. Right. He's still a felon at the end of the day. But how and when he serves his potential time is very much up to voters, it seems, right? You know, it seems like a pretty rare thing.

Like how many people get a delay on their possible four year sentence based on how many people like them? Exactly. Everything about Donald Trump's legal woes, everything about this case is unique. And there's no playbook for something like this. This is why I think it was such a challenging decision for the judge to make. There are no easy decisions in this case whatsoever. Now, I understand the concern that any kind of special accommodation for any defendant

tarnishes that sense of fairness in the justice system. On the other hand, can you imagine if we had had a sentencing seven weeks before election day, potentially a sentencing to jail time, and if that outcome had moved the polls, had moved the needle in some way, then I think you could have had a judge feel remorse about that to be inserted into the election itself is kind of the opposite of how the justice system is supposed to work. And so I understand everyone's concern, but at the end of the day this judge was just not going to have himself be a potentially deciding factor in a presidential election.

Ben, thank you. Thanks so much. We'll be right back. We'll be right back. Here's what else you should know today. James Earl Jones, whose stage, film, and television career spanned Shakespeare's rhapsodic tragedies and the faceless menace of Darth Vader died on Monday. He was 93. Jones was born in Mississippi in 1931.

He fell mute for years after developing a debilitating stutter. I have no presumptions or no arrogance about my voice. You want to think that I might even be in love with my voice, I'm not, because it would be the most unfaithful lover I ever had, because it fails me often. But he learned to speak again and later said that learning to control his stutter

had led to his career as an actor. When I first came into the theater, I followed Sidney Poitier's generation, but he had established the hype. And for the rest of us, we were there to establish the breadth of what young black actors could do. He played roles that dealt with racial issues, becoming one of the first black actors

to appear regularly on daytime soap operas, acting in the television miniseries Roots, and in plays by August Wilson. It is my responsibility, you understand that? A man got to take care of his family. You live in my house, you sleep behind on my bedclothes, you put my food in your belly because you are my son, you are my flesh and blood, not because I like you.

It is my duty to take care of you. I owe a responsibility to the... He acted in scores of plays, nearly 90 television dramas, and some 120 movies, playing kings and generals, garbage men and bricklayers. Simba, you have forgotten me. No. His roles included his voice work, including in the original Star Wars trilogy and in The

Lion King. Remember who you are. You are my son. Star Wars trilogy and in The Lion King. Leave me, Father. Today's episode was produced by Diana Nguyen and Claire Tannisketter. It was edited by Lexi Diao and Patricia Willans with help from Devin Taylor and Paige Cowitt, contains original music by Dan Powell and Diane Wong and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsvark of Wonderly. That's it for the

daily. I'm Sabrina Taverneisi. See you tomorrow.