Judge delays immunity ruling on President-elect Donald Trump's hush money conviction

The decision on whether President-elect Donald Trump's felony conviction in his hush money trial will be overturned based on a claim of presidential immunity has been delayed until next week, officials said Tuesday.

Manhattan Supreme Court Justice Juan Merchan was scheduled to rule Tuesday on a defense motion seeking to throw out the jury verdict. But following a joint request by both the prosecution and the defense, the court agreed to postpone a decision until Nov. 19.

The Manhattan District Attorney’s Office, citing conversations with Trump’s defense team in light of his victory last Tuesday in the presidential election, requested that Merchan delay his ruling so it could prepare its own legal arguments.

"The People agree that these are unprecedented circumstances and that the arguments raised by defense counsel in correspondence to the People on Friday require careful consideration to ensure that any further steps in this proceeding appropriately balance the competing interests of (1) a jury verdict of guilt following trial that has the presumption of regularity; and (2) the Office of the President," prosecutor Matthew Colangelo wrote in an email to Merchan Sunday morning.

Trump defense attorney Emil Bove emailed the judge about an hour later Sunday and said: "There are strong reasons for the requested stay, and eventual dismissal of the case in the interests of justice, under the U.S. Supreme Court's decision in Trump v. United States and the Presidential Transition Act of 1963, 3 USC 102 note. ... The stay, and dismissal, are necessary to avoid unconstitutional impediments to President Trump's ability to govern, which is the broader argument that we made to [the Manhattan DA’s office] on Friday."

Merchan is scheduled to sentence Trump on Nov. 26, a date that could be postponed for a third time, if not canceled altogether, in the event that Merchan rules in Trump’s favor.

The incoming president could receive a sentence ranging from probation to 4 years in prison. Merchan had initially scheduled Trump's sentencing for July. It was delayed after the U.S. Supreme Court ruled that presidents are immune from prosecution of their official acts.

A Manhattan jury convicted Trump in May of 34 counts of falsifying business records to cover up $130,000 in hush money to conceal his affair with a former adult film actress. That cover-up, prosecutors alleged, was to hide the affair from the American electorate as Trump sought the presidency ahead of the 2016 election.

The verdict was historic. Trump became the first American president convicted of a crime. In another first, Trump became the first American president to be held in contempt of court when Merchan ruled that Trump had violated a gag order prohibiting him from publicly criticizing the jury or court staff.

After the Supreme Court ruling on presidential immunity, Trump defense attorneys Bove and Todd Blanche argued the high court’s ruling should override the jury’s verdict and asked for the jury's verdict to be set aside.

Legal experts have also cited the U.S. Constitution's supremacy clause — a legal principle that dictates federal law eclipses state law. Under the supremacy clause, states can’t prosecute a sitting president, experts said.

"This development illustrates how uncertain Trump’s legal status is in light of his election," said Mark C. Zauderer, a partner in the New York office of Dorf Nelson & Zauderer LLP. "Prosecutors know they can expect a barrage of legal challenges, possibly in both state and federal courts, if they push the envelope and go forward. However, at some point, they will have to proceed or wave a white flag."

Nassau County-based defense attorney William Petrillo predicted Trump’s side would be victorious.

"Putting aside for a moment the timing of this prosecution and novel legal theory, the Supreme Court’s ruling alone, coupled with President Trump about to take office, gives the court every legal and practical reason to dismiss this indictment," he said. "This will further the interests of justice and preserve the integrity of our criminal justice system. Particularly since it’s only a matter of time until a higher court does it."

Manhattan prosecutors argued at trial that Trump, about two months after he announced his first run for president in June 2015, plotted a "criminal conspiracy" to win the election.

Along with his then-personal attorney Michael Cohen and tabloid publisher David Pecker, Trump executed a series of "catch and kill" plans by paying off people alleging to have negative stories about Trump, prosecutors argued. 

Adult film actress Stormy Daniels was paid $130,000; former Playboy model Karen McDougal, who also alleged to have had an affair with Trump, was paid $150,000; Dino Sajudin, a door attendant at Trump Tower who had shopped a false story that Trump fathered a child outside his marriage, was paid $30,000.

Prosecutors have said the payment was illegally recorded in Trump Organization records as legal services part of a retainer agreement, but neither the retainer nor the legal services existed.

The charges of falsifying business records are misdemeanors, but the district attorney's office upgraded them to Class E felonies, arguing the crimes were committed to cover up the crime of conspiracy to promote an election by unlawful means.

Under the law, Trump was not required to have made the false entry himself, but to have "made and caused a false entry" with "the intent to defraud to commit another crime," according to legal instructions the judge gave to the jury.

Cohen was later paid $420,000, which prosecutors said was reimbursement, in part, for the hush money payment to Daniels, prosecutors argued at trial.

Trump's payments to Cohen — $35,000 monthly — were not repayments for the hush money, but were simply for what the documents stated — legal services, his lawyers contended, as Cohen was still acting as Trump's personal attorney at the time.

Trump’s other pending criminal cases are likely to go away now that he’s been elected president, legal experts have said. Federal indictments charging Trump in the classified documents and Jan. 6 cases could be dismissed when the Trump administration installs a new head of the Justice Department, legal experts have said. The Associated Press has reported, citing a source, that the Justice Department has been "evaluating" how to handle the federal cases against Trump before he takes office. Trump’s election interference case in Georgia is "largely on hold" while an appeal is pending, according to the AP.

Gregory Germain, a Syracuse University law professor, predicted Tuesday that Merchan would stay Trump’s sentencing until he leaves the White House.

"The election changes things because of the Justice Department's long-standing policy that the indictment or prosecution of a sitting president while he is in office would violate the principles of separation of powers contained in the Constitution by distracting the president from his official functions," Germain said. "The Justice Department's guidance would require the courts to stay further criminal proceedings once he is in office. The guidance did not specifically address the gap between winning the election and taking office, but presumably impairing the president-elect's ability to prepare for the transition would raise the same separation of powers issues that would apply once the president is in office."