Former President Donald Trump's lawyers are seeking to postpone the Sept. 18 sentencing in his New York hush-money conviction until after the election.
Trump's lawyers asked Judge Juan Merchan to delay the sentencing until after the November vote, according to a letter dated Aug. 14. Merchan earlier this week denied Trump's request to recuse himself in the hush-money case. Merchan wrote that it's the third time Trump has asked for his recusal based on "innuendo and mischaracterizations" concerning Merchan's daughter and her work with the Democratic Party.
Trump's lawyers say a delay in sentencing would "mitigate the asserted conflicts and appearances of impropriety, which are also the subject of an ongoing congressional inquiry."
"By adjourning the sentencing until after that election... the Court would reduce, even if not eliminate, issues regarding the integrity of any future proceedings," reads the Aug. 14 letter.
But Syracuse University College of Law professor Gregory Germain said Trump's trying to create fodder for a future federal court challenge.
"I think Trump's request to delay sentencing is a clever ploy to make a record to argue in federal court that the judge was politically motivated to interfere with the federal election," Germain told Salon. "I doubt that the court will delay sentencing, but it will give Trump an additional argument to challenge the sentencing on appeal, or collaterally in a habeas corpus case if he's sentenced to prison."
And legal experts say they expect Trump to fight the imposition of a sentence regardless.
Former federal prosecutor Andrew Weissmann said there's no reason Trump can't go to jail if he loses the election and receives a jail sentence. And conversely, Weissmann said if Trump wins, any jail sentence would get delayed until he leaves office.
"But little reason Trump [should] not be sentenced on 9/18," Weissmann said on X. "But he will make MANY motions to avoid imposition of a sentence in September."
Jurors in the Manhattan criminal trial in May found Trump guilty of 34 charges of falsifying business records – including invoices, accounting ledger entries and checks – as part of a scheme to disguise $130,000 in hush money as a legal expense and keep potentially damaging stories about alleged extramarital encounters from voters. Each of the 34 count carries up to four years in prison — though legal experts said Trump would likely serve less than four years given his previous lack of a criminal record.
National security attorney Bradley Moss said on X that "Trump has no intention of just sitting back and allowing sentencing to go forward even if delayed until after the election."
"If he wins, he will say a sitting president cannot be imprisoned and argue any imprisonment has to wait until after his term finishes in January 2029 (at which point he'll say he is too old to be imprisoned)," Moss wrote. "If he loses, he'll say he is too old, too frail, needs too much medical assistance and requires too much USSS protection to make imprisonment a worthy use of resources."
Georgia State College of Law constitutional law professor Anthony Michael Kreis said: "Trump is not entitled to favoritism. He should be sentenced on a schedule just like anyone else."
On July 2, Merchan delayed sentencing until September — "if," he wrote, "such is still necessary."
Trump's lawyers cited that July 2 correspondence in their Aug. 14 letter, which argues that Trump shouldn't be sentenced at all because of the Supreme Court's recent ruling on presidential immunity.
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The Supreme Court’s landmark 6-3 ruling said that presidents have "absolute immunity from criminal prosecution" for acts that fall within the "exercise of his core constitutional powers he took when in office."
Presidents, according to the ruling, have "at least presumptive" immunity for other official acts, and no immunity for unofficial acts.
Five of the nine justices also agreed that presidents “cannot be indicted based on conduct for which they are immune from prosecution.”
That means prosecutors aren't allowed to use evidence that concerns a president's protected official conduct.
Trump lawyers argue that prosecutors improperly used evidence — meaning the case should be tossed.
The Manhattan D.A., meanwhile, says that's not the case — and that any improperly used evidence wouldn't have made a significant difference in the outcome.
Hofstra Law professor James Sample said the Supreme Court's presidential immunity ruling makes it hard to predict how Trump's arguments will fare.
"The Supreme Court’s debacle of a decision in the presidential immunity context invites the arguments for differential - and preferential - treatment that Trump is making," Sample told Salon. "Should they succeed in a rational legal world? No. Might they, nonetheless succeed in ours, though? It’s very possible.”
Trump's lawyers say that while the judge weighs the impact of the immunity ruling on his New York conviction, the D.A. should not be allowed to file a public sentencing submission that "will include what the Supreme Court described as the 'threat of punishment,' in a manner that is personally and politically prejudicial to President Trump and his family, and harmful to the institution of the Presidency."
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His lawyers also said the adjournment would provide him more time to pursue state and federal appellate options for a potential adverse ruling.
"Put simply, until DANY's Presidential immunity violations are addressed fully and finally, this Court may not 'adjudicate' this matter — including at sentencing," wrote the lawyers.
The court has said it'll issue a decision on the immunity motion on Sept. 16, ahead of the Sept. 18 sentencing.
"A single business day is an unreasonably short period of time," wrote Trump's lawyers.
Trump's lawyers said that in Trump's election interference case in D.C., the special counsel's office had yet to release a position on a briefing schedule as that court weighs the impact of the immunity decision on the case.
"There is no basis for continuing to rush," reads the letter.
Trump's lawyers pointed out that the September sentencing would begin after some states have started early voting.
MSNBC legal correspondent Lisa Rubin said that the start of early voting may undercut Trump's timing argument.
"If anything, it means many voters have the chance to cast their ballots before a sentence, if any, is handed down," she wrote on X.
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