Manhattan District Attorney Alvin Bragg’s best strategy with Donald Trump may be to quit while he’s ahead, former prosecutors say.
The case against Trump for lying on business records to cover up his sexual affair with a porn star is all but dead. A jury spoke conclusively, yet the sentencing will likely never happen. Bragg still made history, however: Trump will enter the White House a convicted felon.
If Bragg wants to ensure the jury’s ruling stands, his best option may be to fight off any forward movement in the case that would actually get Trump closer to being sentenced, legal experts say — and hope the state judge puts off making any pending decisions for years.
“Nothing, that may be the most harmful thing they can do to Trump. The judge puts it off till he’s out of office … meanwhile, Trump’s a convict. People can refer to him as one. People can say it,” said John Moscow, a former prosecutor who’s often consulted by some of the top legal minds in the city.
It’s an awkward end without a resolution to an unprecedented legal drama that rocked the nation. It is also sure to disappoint those who’d hoped Trump would be held accountable for trying to manipulate the 2016 election long before he ultimately won the 2024 presidential contest.
But it’s the likely strategy in the face of a difficult reality for Bragg: Any decision in the case — and even a sentencing — will spark further appeals that will inevitably end up before the U.S. Supreme Court, which will then have the opportunity to rule in Trump’s favor.
“You don’t want the Supreme Court to say the state of New York doesn’t have the right to incarcerate people named Trump,” Moscow said.
In the tumultuous weeks since Trump won the election, NOTUS spoke with former prosecutors and judges about the complex legal situation and how it could unfold in the months and years to come.
“There’s no good options, is the problem,” said Karen Friedman Agnifilo, another former prosecutor who helped lead the DA’s office under Bragg’s predecessor, Cy Vance, who started the Trump investigations there.
“This is unprecedented,” she conceded. “I just don’t see the sentencing occurring at this point or ever, unless they put it off until he’s done being president.”
Moscow, who pioneered New York’s “enterprise corruption” charges and advocated for Bragg to bring forward the same against Trump — a powerful theory that was considered but ultimately not filed — was similarly resigned. At his office last week, in a tower across the street from Grand Central Terminal, the senior lawyer expressed deep frustration with the idea that Trump escaped what could have been decades behind bars. But Moscow noted that Trump didn’t slip away unscathed.
The business mogul whose crowning achievement is his personal brand has been tainted with the official stamp of criminality, he said.
“And that’s as good as we’re going to get,” he said, noting that demanding Trump be sentenced is nothing but a fool’s errand. “If you’re the DA, you have to wonder about the precedential value of having a higher court overturn this conviction. If you don’t sentence him, they can’t.”
The question now is if Justice Juan Merchan will hold off on deciding two pending motions — and possibly others that could come. After the Supreme Court’s immunity decision in July, Trump’s defense lawyers argued that some evidence at trial violated presidential immunity. Specifically, Trump’s lawyers have pointed to jurors hearing about how Trump was in the Oval Office when he signed personal checks to lawyer Michael Cohen for fake work to pay him back for covering up Stormy Daniels’ hush money payment. Recently, defense lawyers have also asked for the entire case to be dismissed on the idea that presidential immunity also applies to a president-elect.
Merchan doesn’t need to move on either argument, former prosecutors say. Defense lawyers can’t force his hand. By simply letting them wait there unattended, the judge doesn’t give Trump’s team anything to actually appeal to a higher court.
“He’s a convict under New York law now, and if you don’t decide the motion, he stays a convict. There’s nothing the appellate court can do about it,” Moscow said.
As for the online argument among Trump supporters that the president-elect can’t be called a convicted felon without having been sentenced, Moscow pointed to New York’s Criminal Procedure Law, which technically determines a person’s conviction status the moment a jury’s verdict is read. The previous law waited until sentencing but was changed in 1971 to prevent fraudsters from pushing off sentencing to obtain licenses before their new statuses would kick in and lock them out of professional opportunities.
The hope for some in Bragg’s orbit is that Trump will simply be too distracted on his way into the Oval Office to pay any attention to the pending New York case. Trump is already emptying the bench, tapping lead defense lawyer Todd Blanche as his pick to be his incoming administration’s deputy attorney general and selecting co-counsel Emil Bove to serve as the Justice Department’s principal associate deputy attorney general. As of last week, the president-elect’s transition team plan was to place Bove as acting deputy AG until Blanche gets confirmed, which means that the main players in the defense team will soon be out of commission.
Bragg declined an interview request and did not take questions about the subject during a press conference last week at his office following a gang gun bust. But his staff pointed to a subsequent court filing he made in recent days, where Bragg himself said that prosecutors would continue to defend the jury’s guilty verdict — and even consider a four-year freeze that could pick the case back up whenever Trump leaves the White House.
The hush money case has been saddled with criticism from the start. A lead prosecutor on the team, Mark Pomerantz, wrote an entire memoir that described how he left the office when Bragg wouldn’t green-light a broader case that looked more like a mafia takedown — one that would coalesce all kinds of accusations, including bank fraud (which was proved in a separate civil trial led by the state’s attorney general). Insiders with personal knowledge of conversations at the DA’s office initially complained about the relatively weak nature of going after Trump for merely fudging the paperwork that paid back his lawyer. Some legal commentators questioned why Bragg would be the first to put Trump on trial when more robust criminal charges were pending.
Ultimately, Bragg’s case was the only one to go to trial — and end up in a conviction. Twelve jurors unanimously concluded that Trump committed all 34 felonies in the indictment and swiftly came back with a verdict.
That hasn’t stopped some from lobbing even more criticism, this time directed at the judge. Had he wrapped up legal proceedings before the Supreme Court’s immunity decision in July, Trump might have already been sentenced by then.
Merchan postponed the trial by nearly a month when defense lawyers claimed they received a document dump from the feds — even though that later turned out to be nothing more than a distraction, with the judge deeming the records inconsequential. When the verdict came down, Merchan set sentencing more than six weeks later on July 11, when he could have held it in June. Then Merchan postponed the sentencing to Sept. 18, only to push it back again, citing the upcoming election and a desire to not meddle with the nation’s choice — an ironic turn when the judge himself noted that Trump’s crime was more than just hush money and actually about keeping information from American voters.
“Merchan should have sentenced in September. The delay in sentencing has only made this issue more complicated and one that does not have an easy resolution,” said Alan D. Marrus, a former New York state judge.
The situation has some wishing that the trial had wrapped up sooner. But Agnifilo noted that hypotheticals simply don’t work.
“You would have had a different jury. And there are no guarantees that a different jury would find the same thing. It’s easy to look back and ask what-ifs. The Manhattan DA’s office doesn’t do things for political reasons,” she said.
“Timing sometimes doesn’t work out the way people in the realm of politics would like,” Agnifilo added. “Trump is basically very lucky. A lot of things broke his way.”
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Jose Pagliery is a reporter at NOTUS.