The justice system still has a chance to convict Trump

One of the many troubling consequences of Donald Trump's re-election is that he will largely avoid accountability for his conduct in his four criminal cases. No other criminal defendant in American history has had the power to end his own prosecution. This is an unprecedented and heartbreaking affront to the principle that no one is above the law.

The potential exception is the case of New York State. In May, a jury found Trump guilty of 34 counts related to falsifying business records to conceal secret payments to adult film star Stormy Daniels before the 2016 election.

Judge Juan Merchan recently granted the parties' joint request to stay proceedings in New York while both sides consider what should be done in light of Trump's re-election. Trump's lawyers say the case should be dismissed outright to avoid unconstitutional obstacles to President Trump's ability to govern. Even the district attorney's office said it wanted time to consider how the court should balance the competing interests of the jury's verdict and the needs of the president's office.

Out of an abundance of caution, Merchan avoided pre-election condemnation that could potentially have influenced the vote. But the election result changes nothing in the criminal case. Now that the election is over, sentencing should come quickly.

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Once in office, Trump could dismiss federal charges against himself and his allies. He threatened to use the Justice Department to prosecute his political opponents. He could seek to bend the justice system to his will in unprecedented ways. But this does not mean that the prosecutor or Merchan must obey in advance by abandoning the jury's verdict.

Trump's lawyers are essentially arguing that the election is a clean slate, the people have spoken, and all criminal cases should be dismissed. His former attorney general, William Barr, made a similar point in an interview with Fox News, where he called on prosecutors to drop all pending criminal cases. The American people have rendered their verdict on President Trump, Barr argued. Prosecutors, he said, should respect the people's decision and dismiss the charges against President Trump now.

What nonsense. The election was not a verdict on Trump’s criminality. A majority of voters apparently concluded that Trump's criminal cases were not disqualifying, just as sexual assault, the pandemic response, efforts to overturn the last election and many other things apparently were. not disqualifying. This is not to say that it didn’t happen or that Trump isn’t legally and morally responsible.

There is no doubt that all the accused public officials would like to be able to say that winning their next election means everyone should just forget about their alleged crimes. This is not how our system works. An election is not a jury verdict, and winning an election doesn't make you any less guilty.

As far as Trump is concerned, the New York case could be the last stand for the rule of law. As president, Trump is sure to quickly end the two ongoing federal prosecutions: the classified documents affair in Florida and the January 6 affair in Washington. He might not even need to do it himself. Special Counsel Jack Smith and the Justice Department have already begun discussing how to end the cases, based on DOJ policy that a sitting president cannot be prosecuted.

Even if the current Justice Department tried to keep the cases alive in some way, such as by simply agreeing to put them on hold until Trump leaves office in four years, the new Department of Justice would simply reject them. Trump could pardon his co-defendants and co-conspirators, and could even try to pardon himself.

Unlike federal cases, Trump cannot unilaterally end lawsuits against states. The Georgia case is currently mired in appeals over whether the prosecutor should be disqualified for conflict of interest. But even though the Justice Department's policy against prosecuting a sitting president is not binding on states, the reality is that a state will not be allowed to bring a sitting president to trial. If prosecutors survive the appeals, trial could proceed against the remaining defendants in a year or two. But any potential trial of Trump will certainly, at a minimum, be postponed until he leaves office and who knows if there will be a desire to pursue the case at that point.

That leaves New York. Until granting the latest deadline extension, Merchan was scheduled to rule Nov. 12 on Trump's claim that the Supreme Court's ruling on presidential immunity required the dismissal of his convictions. This argument is far from valid, because almost all of Trump's relevant behavior in this matter took place before he was president. And although Trump claims that some evidence during his trial should have been excluded by immunity, those claims are unlikely to derail the convictions. Assuming Merchan denies the motion to dismiss, sentencing was set for November 26 until election results cast that into doubt.

The sentencing is expected to go forward. Trump's lawyers' argument that the entire case should be thrown out on the basis of his re-election amounts to little more than asserting that a president (or in this case, a president-elect) is above laws and can never be held criminally responsible. Thanks to election results and the Supreme Court's immunity ruling, this appalling statement can often be true, but it doesn't have to be in this case.

The defense's claim that the conviction would unconstitutionally hamper Trump's ability to govern is laughable. Trump is not yet president. He is not responsible for governing anything other than his transition. A sentencing proceeding would require a few hours in a New York courtroom, probably less time than a round of golf. He could bring him in.

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The defense may be suggesting that if Trump were sentenced to prison, it would be detrimental to his office. It is true that a prison sentence could be problematic. If Merchan were inclined to sentence Trump to prison, he would likely suspend that sentence pending appeal. Once Trump is in office, even if the convictions were upheld, the state would likely not be allowed to imprison the sitting president.

In the unlikely event that Merchan attempts to imprison Trump immediately, a higher court would undoubtedly intervene. Federal courts are no more likely to allow a state to imprison the president-elect than to allow a state to imprison the president.

But Merchan has sentencing options other than incarcerating the president-elect. It could fine and/or sentence Trump to probation, effectively suspending any probationary period until Trump leaves office. He could even impose a prison sentence, but also suspend it until Trump is no longer president.

At this point, the details of the sentence are less important than the current sentence. Justice requires that the criminal proceedings be brought to a conclusion. The defendant was found guilty by a jury. The next step, normally, is for the judge to impose a sentence. This will formalize Donald Trump's record as a convicted felon. Even if Trump ends up without a substantive conviction, this is an important legal and historical statement.

Once convicted, Trump's lawyers will be able to appeal his conviction. This can be done with almost no involvement from Trump himself. The appeal process will be handled by lawyers and will not interfere with any of his presidential duties. His convictions may be upheld on appeal or thrown out, but there is no reason why normal criminal proceedings cannot continue.

Although the idea was unthinkable to many of us, a criminal can be president of the United States. The people have spoken, as Trump's lawyers and supporters would say. But just as Trump's criminal cases did not prevent his re-election, the election should not prevent the usual criminal proceedings in New York from concluding. This conviction must take place.

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