This Week In Lawfare Land: Will Merchan Sentence Trump Pre-Election?

While the cases against Donald Trump in Georgia and Florida have either stalled or fallen apart completely, the former president is still actively fighting attempts to imprison him in New York and Washington D.C. after a Supreme Court decision cast further doubt on the legitimacy of the lawfare cases.

In New York, Trump is fighting to postpone a sentencing that is currently scheduled to take place 48 days before Election Day. On Monday, District Attorney Alvin Bragg tossed the ball into Judge Juan Merchan’s court, saying he would not take a position on Trump’s request for a delay.

Here’s the latest information you need to know about each case.

Read our previous installments here.

Manhattan, New York: Prosecution by DA Alvin Bragg for NDA Payment

How we got here: Manhattan District Attorney Alvin Bragg — who “campaigned as the best candidate to go after the former president” — charged former President Donald Trump with 34 felony charges for alleged falsification of business records relating to a nondisclosure agreement paid by Trump’s former attorney Michael Cohen to pornographic film actress Stormy Daniels.

This criminal trial concluded on May 30, with the jury returning a guilty verdict that Trump is expected to appeal. The conviction does not affect President Trump’s ability to run for president, though it may present complications with his ability to run a modern presidential campaign.

Latest developments: The U.S. Supreme Court rejected an attempt by Missouri Attorney General Andrew Bailey to delay President Trump’s sentencing until after the November election.  In an unconventional move, the Missouri attorney general, on behalf of Missouri, sued the state of New York, alleging that the hush money prosecution and sentencing violated Missouri voters’ rights and impeded their ability to “fully engag[e] with and hear[] from a major-party Presidential candidate in the run up to the November election.” The Supreme Court has jurisdiction to hear suits between states, but it denied Missouri’s request. 

On Wednesday, President Trump’s lawyers requested to delay the sentencing hearing until after the November election. Monday, Bragg’s office declined to take a position on the request, which is now pending before Judge Juan Merchan.

Fulton County, Georgia: Prosecution by DA Fani Willis for Questioning Election Results

How we got here: The Georgia state criminal case is helmed by District Attorney Fani Willis, who charged Trump with 13 felony counts, including racketeering charges, related to his alleged attempt to challenge the 2020 election results in Georgia. This case is currently stalled while the Georgia Court of Appeals hears an appeal on whether Willis should be disqualified from the case.

Latest developments: No new updates. 

Southern District of Florida: Prosecution by Biden DOJ for Handling of Classified Documents

How we got here: In this federal criminal case, Special Counsel Jack Smith and federal prosecutors with Biden’s Justice Department charged former President Trump in June 2023 with 40 federal charges related to his alleged mishandling of classified documents at his Mar-a-Lago residence. In early May, Judge Aileen Cannon postponed this trial indefinitely. 

On July 15, Judge Cannon dismissed the entire case because the appointment of Special Counsel Jack Smith violated the Constitution. Specifically, the appointment was unconstitutional due to improper funding, insufficient appointment procedures by the President and Senate, and a lack of statutory authority to bring the case. 

Special Counsel Jack Smith appealed Judge Cannon’s decision to dismiss the case. The appeal is now before the U.S. Court of Appeals for the 11th Circuit, and the special counsel’s opening brief is due August 27. 

Latest developments:  No new updates. 

Washington, D.C.:  Prosecution by Biden DOJ for Jan. 6 Speech

How we got here: In this federal criminal case, Special Counsel Jack Smith charged former President Trump with four counts of conspiracy and obstruction related to his actions on Jan. 6, 2021. President Trump’s lawyers have argued that immunity extends to actions taken by a president while acting in his official capacity and that, in any event, the First Amendment protects his right to raise legitimate questions about a questionable election process. The issue reached the Supreme Court. 

On July 1, the Supreme Court issued a major decision in Trump v. United States and determined that a former president is entitled “to absolute immunity from criminal prosecution” for “actions within [the President’s] conclusive and preclusive constitutional authority.” These would be actions such as presidential pardons, vetoes of legislation, naming and managing agency officials, and recognizing foreign governments. Further, for anything else a president does that is within the “outer perimeter of the president’s official responsibilities,” there is still a presumption of immunity from criminal prosecution. The scope of what falls within this “outer perimeter” will be determined by a lower court, but presumptively anything done by a president when acting in that capacity, rather than a strictly campaign capacity, could well carry with it immunity.

Latest developments: Following the Supreme Court’s decision on immunity, Special Counsel Jack Smith requested a delay until Aug. 30 to allow prosecutors time to decide next steps in this case. Judge Chutkan granted the delay request. 

On Thursday, former President Donald Trump was handed another victory as Judge Chutkan determined that Trump is permitted to rely on certain classified documents in his defense. The nature of the classified documents is unclear because Judge Chutkan’s order was under seal. 

New York: Lawsuit by A.G. Letitia James for Inflating Net Worth

How we got here: Democrat Attorney General Letitia James — who campaigned on going after Trump — sued former President Trump alleging that he misled banks, insurers, and others about his net worth to obtain loans, although none of the parties involved claimed to have been injured. Following a no-jury trial, Judge Arthur Engoron issued a decision in February ordering Trump to pay a $454 million penalty. Trump has appealed this decision and posted a required $175 million appeal bond. 

Latest developments: No new updates.

Steve Roberts is a partner and Oliver Roberts is an associate with Holtzman Vogel Baran Torchinksy & Josefiak PLLC. They can be reached at [email protected] and [email protected].