Americans proudly proclaim that no one is above the law and that this nation is committed to ensuring equal justice under the law. However, anyone who has watched Donald Trump’s legal odyssey might have trouble taking that slogan and commitment seriously.
As legal proceedings in several venues across the country have unfolded, Trump has tied the legal system in knots, using his status as a former president and a current presidential candidate as a tool to delay and blunt efforts that would otherwise hold him accountable.
Sept. 6 brought another example of Trump’s success in getting the legal system to bend to his wishes. On that day, Judge Juan Merchan agreed to his request to postpone sentencing in the New York hush money case until after the 2024 presidential election.
Merchan’s decision was a big victory for Trump, and it feeds the perception that being a former president tilts the scales of justice in your favor.
The sentencing, originally scheduled for July 11, had already been put off once following the Supreme Court’s July decision in Trump’s presidential immunity case. At that time, Judge Merchan had set Sept. 18 as the new sentencing date.
Sentencing is now set to occur on Nov. 26. But even that date is not set in stone. As Newsweek reports, Trump is asking the New York Court of Appeals for a further delay.
Last week, Merchan claimed that Trump’s “litany of perceived and unsubstantiated grievances from previous filings…do not merit this court’s attention.” At the same time, he accepted Trump’s contention that “a public sentencing” could be “politically prejudicial…on him and his prospects in the upcoming election.”
Merchan suggested that because there was something special about sentencing a former president, he had to treat Trump’s case in that light. “This matter,” he said, “is one that stands alone, in a unique place in this Nation’s history.”
That is certainly true, but it did not require him to grant Trump’s request.
Anticipating criticism for giving Trump what he wanted, the judge contended that “This adjournment request has… been decided in the same way this Court has decided every other issue that has arisen since the origination of this case, applying the facts and the law after carefully considering the issues and respective arguments of the parties to ensure that the integrity of the proceeding is protected, justice is served, and the independence of this judiciary kept firmly intact.”
I think that Merchan protests too much. His own litany of the usual judicial cliches doesn’t convince me otherwise.
While Merchan is right that “Adjournments for sentencing are routinely granted,” his decision focused far too much on the difficulties that sentencing the former president would pose for him and far too little on what a further delay in sentencing would say about equal justice and equal treatment. As he put it, sentencing Trump would be “one of the most critical and difficult decisions a trial court judge faces.”
I give Merchan credit for acknowledging the political context surrounding the timing of Trump’s sentencing. Yet I worry that his decision might have been driven by an understandable desire not to face the blowback he would get whether he sentenced Trump to jail or not.
Merchan argued that postponing sentencing “should dispel any suggestion that the Court will have issued any decision or imposed sentence either to give an advantage to or to create a disadvantage for any political party and/or any candidate for any office.”
But the fact that voters will not know what sentence Trump will be given before they cast their ballots clearly benefits the former president. As Republican pollster Kristen Soltis Anderson said, “It isn’t hard to imagine a voter who isn’t crazy about Mr. Trump but leans toward voting for him, who thinks the trial and verdict itself were much ado about nothing, yet when confronted with the prospect of voting for a man who has been sentenced to prison has a strong reaction.”
While Merchan’s decision could not be completely divorced from politics, I agree with Politico’s Ankush Khardori that, “As a strictly legal matter, there was no good reason to delay Trump’s sentencing.” He explains that Merchan’s decision, in effect, validates Trump’s contention that the New York trial, like all the rest of his trials, served “naked election-interference objectives.”
Khardori makes quick work of the notion that the sentencing delay was necessary so Trump could appeal his conviction and fully litigate whether the Supreme Court’s decision granting presidents immunity from criminal prosecution means the conviction should be thrown out.
“(A)ppeals do not delay sentencings in the ordinary course, even if the defendant strongly believes that he is likely to prevail….The judge sentences the defendant and lets him remain out on bail pending the resolution of the appeal. If the appeal is successful, and the conviction is thrown out, then the sentence is vacated.”
In fairness to Judge Merchan, he doesn’t bear sole responsibility for putting off the sentencing decision. Some of it belongs to Manhattan District Attorney Alvin Bragg, who took no position on Trump’s latest request to push back his sentencing date. That unusual stance made it harder for Judge Merchan to stick to the Sept. 18 sentencing date.
And whether that forced Merchan’s hand or not, the judge’s decision did not mollify Trump’s most ardent MAGA allies.
For example, Megyn Kelly responded to the decision by cautioning her audience not to be fooled into thinking the judge was, or could be, fair to Trump. “Judge Merchan,” she said, “is 100 percent a political actor.”
“Amazingly,” Kelly continued, “this guy has the gall to think we are going to believe he has done this so as not to influence the election. Those are all lies….This judge had no choice” but (contra Khordari) to wait for the Supreme Court to decide whether Trump’s New York conviction should be thrown out.
She concluded that “[Merchan] is a dishonest broker. The dishonesty by our elected officials of all is front and center every day.”
Unfortunately, Judge Merchan’s decision fits a disturbing pattern where the rules seem to be bent in Trump’s favor, including the Supreme Court’s decision on presidential immunity and its decision not to exclude him from the ballot on the grounds that he incited an insurrection.
Ultimately, the American people’s willingness to believe that no one is above the law and that everyone is equal before the law depends not just on how legal justice is dispensed but on how it appears to be dispensed. Merchan’s decision to accommodate Trump’s desire to avoid facing sentencing until after the votes have been counted feeds the perception that there are two sets of legal standards: one for Trump, the other for the rest of us.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His views do not necessarily reflect those of Amherst College.