National Review’s Andrew McCarthy, a former assistant US Attorney, is giving us plenty of warning right now: be prepared for Judge Juan Merchan to sentence Trump to jail next month. Sentencing in the politically motivated hush money sham is set to be handed down on September 18, two days after early voting begins in the crucial battleground state of Pennsylvania. McCarthy said the intent is clear: smear Trump as a felon who just got sentenced to the slammer weeks before Election Day (via Fox News):
The Trump defense team has been trying to stave off sentencing. And the lawyers have what, in a normal case, would be real ammunition.
On July 1, the U.S. Supreme Court held that presidents (including former presidents) are (a) presumptively immune from criminal prosecution for any official acts taken as president, and (b) absolutely immune if the official acts are core constitutional duties of the chief executive. The court instructed that this immunity extends not only to charges but to evidence. That means prosecutors are not just barred from alleging official presidential acts as crimes; they are further prohibited from even using such acts as proof offered to establish other crimes.
There is no denying that Bragg’s prosecutors used some of Trump’s official acts to prove their case. Indeed, they called as witnesses two of Trump’s White House staffers.
[…]
If we may read the tea leaves, Merchan has already decided that he will deny Trump’s immunity motion. There is, moreover, a high likelihood that he will impose a prison sentence against Trump right after that.
By the time he’d issued his letter last week, Merchan had had weeks to mull over the Supreme Court’s immunity decision and Team Trump’s subsequent brief arguing that the guilty verdicts should be tossed out. He told the parties to get ready for sentencing anyway. Obviously, if Merchan had any intention of vacating the verdicts, or of recusing himself, he would not have stuck to the sentencing date.
I suspect that Merchan will rationalize that Trump (a) was not charged based on official presidential acts, and (b) would have been convicted even if Bragg’s prosecutors had not introduced arguably immunized evidence. Such a ruling might be wrong, especially on the latter point (at trial, prosecutors described some of the testimony from Trump staffers as "devastating"); but Merchan made so many outrageous rulings in the case that it would be foolish to expect him to change course now.
The scary part about McCarthy’s piece is that it rehashes what we already know: this is politics, not justice. Therefore, the judges and the courts going rogue to eliminate a political threat to the Democratic Party is not out of the question—it’s already happened. And it’s not just McCarthy making these points. CNN’s Elie Honig has penned damning articles and delivered similar commentaries on-air about the shoddiness of this case. Legally speaking, Honig added that what Trump was convicted of, falsification of records, is no worse of a conviction than for those who shoplifted a Snapple at a local bodega. Also, the statute of limitations had expired.
He also said that some of the evidence cited in the hush money trial included Trump’s discussions with aides. Honig also has been critical of the “other crime” angle used by the prosecution to circumvent the statute of limitation on falsifying records charges.
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