The state court judge presiding over the New York criminal case against Donald Trump ordered sentencing of the president-elect to proceed on January 10, 2025. By setting sentencing a mere 10 days before his inauguration, and by signaling his intent to sentence the soon-to-be president to an unconditional discharge, the judge has unwittingly conceded the indictment of Trump on 34-felony counts was pure lawfare.
On Friday, Judge Juan Merchan entered an 18-page order denying Trump’s motion to vacate the jury verdict and to dismiss the criminal charges Manhattan District Attorney Alvin Bragg brought against him with the help of several Biden-connected lawyers. Quoting the words President Biden used in pardoning Hunter for any crimes his son committed over a span of more than a decade, Trump’s legal team argued “enough is enough.” “This case, which should never have been brought, must now be dismissed.”
Of course, Trump’s legal team is correct: The case was a sham from the start. But Judge Merchan predictably denied Trump’s motion to dismiss, ignoring everything from his own conflicts-of-interests — he donated to the Biden campaign and his daughter held an ownership interest in a company which made millions representing Democrats, including Kamala Harris — to the DA’s improper use of evidence, both in the grand jury and at trial, concerning official acts Trump took while president, in violation of the Supreme Court’s immunity decision.
After refusing to vacate the jury verdict or dismiss the case against Trump, Judge Merchan then pontificated on the need to sentence Trump before the inauguration.
Once the president-elect takes his Oath of Office, Merchan explained, presidential immunity will likely attach, preventing the court from sentencing Trump. So, “it is incumbent upon this Court to set this matter down for the imposition of sentence prior to January 20, 2025,” Judge Merchan reasoned, to, in his words, bring finality to the matter and to serve the interests of justice.
But what Judge Merchan said next gives away his game.
After noting that “as a matter of law” he “must not make any determination on sentencing prior to giving the parties and Defendant an opportunity to be heard,” Judge Merchan stated that “the Court’s inclination [is] to not impose any sentence of incarceration.” Rather, the Manhattan state trial judge previewed his intent to enter “a sentence of an unconditional discharge.”
An unconditional discharge equates to a get-out-of-jail free card: By statute, the Defendant is “released with respect to the conviction for which the sentence is imposed without imprisonment, fine, or probation supervision.”
The New York penal code provides a court with discretion to enter an unconditional discharge as the sentence, where, “the court, having regard to the nature and circumstances of the offense and to the history, character and condition of the defendant, is of the opinion that neither the public interest nor the ends of justice would be served by a sentence of imprisonment and that probation supervision is not appropriate,” and further where “no proper purpose would be served by imposing any condition upon the defendant’s release.”
Courts typically impose an unconditional discharge sentence on Defendants where the crime is insignificant, often a misdemeanor, or less serious felonies, where there are also other extenuating circumstances. For instance, a court might find an unconditional discharge appropriate where the Defendant has no prior criminal record and is a young adult or has substance abuse or mental health problems.
For Judge Merchan to now suggest an unconditional discharge would be the most appropriate sentence to enter given “the nature and circumstances” of the 34 felony counts of conviction and “the history, character and condition” of Trump is laughable.
For four years, Americans were told that Donald Trump was a threat to democracy; that he was responsible for an insurrection; that his conviction for 34 felonies in New York was serious; that in addition to those New York crimes, his business also committed civil fraud and he sexually abused E. Jean Carroll; and that he committed numerous felonies in Georgia and additional federal felonies as charged by Special Counsel Jack Smith.
The very lawfare the Democrats unleashed against Trump apparently means nothing now because Judge Merchan needs a way forward. And here I agree with former federal prosecutor Andrew McCarthy, who wrote at Fox News that there is no public interest in seeing Trump sentenced before his inauguration: “There is, instead, a spiteful New York progressive Democratic interest in branding the Republican president-elect a convicted felon.”
However, as McCarthy notes, Trump is likely to seek an immediate appeal from Judge Merchan’s Friday order, wherein the Mahattan judge denied the president-elect’s challenge to his criminal convictions based on immunity.
While many of the other issues Trump presented in his motion cannot be appealed until after a sentence is imposed, issues of immunity are subject to immediate appeal. That reality adds to the hubris of Judge Merchan’s order that the sentencing of the president-elect shall proceed on Friday.
It seems unlikely that the appellate court will allow Judge Merchan to sentence Trump given the strength of Trump’s challenge to the conviction based on the Supreme Court’s immunity decision.
While New York liberals may be cheering on Judge Merchan, after Trump’s crushing defeat of Harris, there are likely many Democrats hoping the appellate court puts an end to the farce as their lawfare has only helped Trump politically. And with Trump set to reenter the White House with a mandate, and with Republicans in charge of Congress, Democrats cannot afford any further backlash.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
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