The BEST Resolution of Trump’s New York Case*
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The fact that Donald Trump won the 2024 presidential election is an abomination. If justice had truly prevailed, Donald Trump would have been convicted of federal crimes and would be facing prison.
But he is not.
Donald Trump is being inaugurated in less than two weeks because of a number of factors. In an operational sense, what those factors are are truly irrelevant. He won the election. He will take office and he will have a Justice Department run by an Attorney General, whom he selected for loyalty, and a Federal Bureau of Investigation with a head also selected for loyalty. The special prosecutor has already dropped the federal criminal cases against Donald Trump because he knew he was facing the inevitable, his leaving the Justice Department and Donald Trump’s new Attorney General ordering the withdrawal of those cases. For reasons that I would consider specious at best, the courts of the state of Georgia demanded the removal of the Fulton County D.A. and her special prosecutor from the prosecution of Donald Trump and of others for election interference in that state’s 2020 presidential election. We have no idea what will ultimately happened to that case.
The New York State case may well be the only criminal conviction Donald Trump ever faces.
As of now, there are several questions for which there are no definitive answers:
1. Will the United States Supreme Court apply the standard for immunizing presidential action that it set down in its most recent case to a New York State trial completed before that decision came down?
2. Will the United States Supreme Court apply the standard for immunizing presidential action that it set down in its most recent case to the Georgia case?
Do you really want to give this United States Supreme Court an opportunity to rule on these questions any sooner than we have to?
What we do know is that, without the intervention of a higher court, the judge in the New York State case will sentence Donald Trump on Friday, January 10, 2025. He has indicated already that his intention is to “sentence” Donald Trump by imposing no further penalty. Donald Trump will not be imprisoned, placed on probation or even fined. The “sentence“ will be to affirm the fact of the conviction. From that time forward, Trump will have been a convicted felon.
It is absolutely certain that Trump would appeal that conviction through the courts of New York State and, if necessary, through the federal courts up to the United States Supreme Court.
This is an expensive process-but only if you pay your lawyers. While the amount involved would be ruinous for most people, it is no burden to Donald Trump because the Republican National Committee has been paying the attorneys’ fees for Donald Trump’s criminal cases ever since he left office and, presumably, will continue to do so. Meanwhile, Donald Trump will use his legal case as a fundraising mechanism. Based upon past practices, there is no doubt that the funds that will be contributed will far exceed the cost of the defense and will also enable him to keep the grievance he has surrounding this case in front of his devoted followers.
In a perfect world, Donald Trump would be not just facing prison for his federal state crimes, but actually be serving a sentence.
We do not live in a perfect world.
What is the best possible resolution of this case?
As soon as the judge in the New York State case pronounces the sentence and declines further punishment, the governor of the state of New York should pardon Donald Trump.
For those to whom a pardon of Donald Trump seems unjust and no way reflective of his guilt of these many other crimes, examine the big picture:
While he will have been pardoned, Trump will have been a convicted felon.
He may try to call this pardon a vindication, but it does not change the fact that he was convicted by a jury of his peers.
Since he has been pardoned, Donald Trump will have nothing to appeal to a higher court. Courts in America are governed by a “case or controversy” rule. If there is no actual controversy, courts will not consider a theoretical dispute. Therefore, the issues surrounding the scope of immunity and the prosecution in the state of Georgia will be unresolved. It is conceivable that, perhaps after Trump completes his four years in office, he may face justice in a Georgia courtroom. If the case remains alive, it should be noted that the governor of Georgia cannot pardon anyone. Pardons are covered by a board which, at the current time, has a majority of Democratic members.
This is not the outcome which anyone who believes in the Constitution or the rule of law whatever want. But it is the best that we can have at the current time.
This is Robert M. Lipshutz, Inthepublicinterest.net.