NEW YORK – Eager to preserve President-elect Donald Trump ’s hush money conviction even as he returns to office, prosecutors are suggesting various ways forward — including one based on how some courts handle criminal cases when defendants die.
Trump’s spokesperson called the ideas “pathetic.”
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In court papers made public Tuesday, the Manhattan district attorney’s office proposed an array of options for keeping the historic conviction on the books.
The proposals include freezing the case until Trump is out of office, or agreeing that any future sentence wouldn’t include jail time. Another idea: closing the case with a notation that acknowledges his conviction but says that he was never sentenced and that his appeal wasn’t resolved because of presidential immunity.
The last is adopted from what some states do when a criminal defendant dies after being convicted but before appeals are exhausted. It is unclear whether that option is viable under New York law, but prosecutors suggested that Judge Juan M. Merchan could innovate in what's already a unique case.
“This remedy would prevent defendant from being burdened during his presidency by an ongoing criminal proceeding,” prosecutors wrote. But at the same time, it wouldn't “precipitously discard” the “meaningful fact that defendant was indicted and found guilty by a jury of his peers.”
Expanding on a position they laid out last month, prosecutors acknowledged that “presidential immunity requires accommodation during a president’s time in office,” but they were adamant that the conviction should stand. They argued that Trump’s impending return to the White House should not upend a jury’s finding.
Trump is pressing for the case to be thrown out altogether in light of his election. His communications director, Steven Cheung, called prosecutors' filing “a pathetic attempt to salvage the remains of an unconstitutional and politically motivated hoax.”
“This lawless case should have never been brought, and the Constitution demands that it be immediately dismissed,” Cheung said in a statement.
Trump has been fighting for months to reverse his conviction on 34 counts of falsifying business records. Prosecutors said he fudged the documents to conceal a $130,000 payment to porn actor Stormy Daniels to suppress her claim that they had sex a decade earlier.
He says they did not and denies any wrongdoing. Trump portrays the case as a political attack ginned up by D.A. Alvin Bragg and other Democrats.
Trump's legal team argues that letting the case continue would present unconstitutional “disruptions” to his upcoming presidential term. Trump's attorneys also have cited President Joe Biden’s recent pardon of his son Hunter Biden, who had been convicted of tax and gun charges. Biden complained that his son was unfairly prosecuted for political reasons — and Trump’s lawyers say he was, too.
Trump’s lawyers have argued that the possibility of a jail sentence — even if it's after he leaves office — would affect his presidency. Prosecutors suggested Merchan could address that concern by agreeing not to put him behind bars.
It’s unclear how soon Merchan may decide what to do next with the case. He could grant Trump's request for dismissal, go with one of the suggestions from prosecutors, wait until a federal appeals court rules on Trump’s parallel effort to get the case moved out of state court, or choose some other option.
Trump, a Republican, takes office Jan. 20.
He had been scheduled for sentencing late last month. But following Trump’s Nov. 5 election victory, Merchan halted proceedings and indefinitely postponed the former and future president’s sentencing so the defense and prosecution could weigh in on the future of the case.
Merchan also delayed a decision on Trump’s prior bid to dismiss the case on immunity grounds.
A dismissal would erase Trump’s conviction, sparing him the cloud of a criminal record and possible prison sentence. Trump is the first former president to be convicted of a crime and the first convicted criminal to be elected to the office.
The hush money case was the only one of Trump’s four criminal indictments to go to trial.
Since the election, special counsel Jack Smith has ended his two federal cases, which pertained to Trump’s efforts to overturn his 2020 election loss and allegations that he hoarded classified documents at his Mar-a-Lago estate. A separate state election interference case in Fulton County, Georgia, is largely on hold. Trump denies wrongdoing in all.