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The election of Donald Trump to the White House could delay the sentencing of the silence trial and kill pending criminal proceedings, experts say
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The election of Donald Trump to the White House could delay the sentencing of the silence trial and kill pending criminal proceedings, experts say

Donald Trump’s election victory could delay sentencing for his conviction in the Manhattan hush money case and end federal cases against him, legal experts say.

The former and future president faces a tangle of legal issues that will be delayed or even disappear thanks to his re-election, according to state and federal defense attorneys.

There is an ongoing case brought in Georgia by Fulton County District Attorney General Fani Willis, who accused the former president of trying to overturn the 2020 election. Trump faces two federal criminal cases: one for violating secrecy laws in Washington , DC and another in a federal court in Florida for attempted insurrection of the US government.

What is most urgent, however, is the sentencing of the former president in Manhattan scheduled for November 26.

In May, a Manhattan jury convicted Trump of 34 counts of falsifying business records to cover up a scheme to keep a former adult film star quiet about an alleged affair. Manhattan District Attorney Alvin Bragg accused the former president of trying to silence news of the appointment to keep voters in the dark during the 2016 presidential election.

Judge Juan M. Merchán in his Manhattan office in March.

Judge Juan M. Merchán in his Manhattan office in March. Credit: AP/Seth Wenig

Manhattan Supreme Court Justice Juan Merchan said he would sentence Trump at the end of the month, but putting an elected president behind bars could pose some risks, defense attorney Arthur Aidala told Newsday.

“Everyone has a certain degree of self-preservation,” the lawyer said. “I don’t see the judge putting him behind bars. Threats to the judge would be out of control.”

Most likely, Aidala said, victory at the polls will buy Trump some time.

“I can see the judge reprimanding him, telling him he shouldn’t have done what he did, but holding off on sentencing until he leaves office,” Aidala said Wednesday.

Legal opinions, however, differ on what might happen next.

Trial attorney Mark Zauderer of the law firm Dorf, Nelson and Zauderer said it would be unlikely that the sentence would be suspended.

“I think there is a high probability that he will impose some sentence,” he said.

A punishment that does not carry a prison sentence would likely survive an appeal to a higher court, Zauderer said. However, if Merchan tried to jail him, the judge would not get support from the higher courts because of the “supremacy clause,” a legal principle in U.S. law that dictates that federal law prevails over state law, the lawyer said.

Former Suffolk County District Attorney Tim Sini, now a partner at Nixon Peabody, said that under the supremacy clause, states cannot prosecute a sitting president.

“There is no difference between a sitting president and an elected president,” he said.

The federal question of presidential immunity also hangs over the case.

Merchan originally scheduled sentencing for July, but delayed it until September after the U.S. Supreme Court ruled that presidents have immunity from prosecution for their official acts.

Defense attorneys Todd Blanche and Emil Bove argued that the high court’s ruling should overturn the jury’s verdict and proposed vacating the verdict. Merchan said he would rule on that motion next week.

Sini said defense attorneys could use the immunity issue to postpone the case for many years by referring it to the federal court system.

D.C. District Court Judge Tanya Chutkan has yet to rule on the question of immunity in the insurrection case brought against Trump for interfering with the certification of the 2020 election.

“They could ask the judge to delay the sentence until that happens,” Sini said.

If Merchan rules that Trump is not immune from prosecution, defense lawyers will likely appeal, causing another delay.

Blanche and Bove did not respond to an email seeking comment. Defense attorney Susan Necheles declined to comment.

Under the same federalist principles that prevent states from prosecuting sitting presidents, Trump could not pardon himself or dismiss the New York or Georgia cases.

But Zauderer and Sini agreed that federal cases against the president-elect would likely not move forward.

“Based on everything he said and knowing Trump’s views, he’s likely to get those cases dismissed,” Zauderer said. “He could do it through the Attorney General, appointing someone who is willing to do his bidding… He may be bold and order the Department of Justice to simply dismiss the case.”

Most incoming presidents replace federal prosecutors from the previous administration.