New York City Judge Juan Merchan has postponed the sentencing of former President Donald Trump following his conviction of federal campaign violations, from July 11 to Sept. 18, after Trump filed an appeal to overturn the conviction in light of the Supreme Court’s ruling on July 1 that both presidents and former presidents enjoy some immunity for official actions taken during their tenures of office.
Although it is unclear how Trump’s lawyers will be able to show how the payments from then-Trump lawyer Michael Cohen to Stormy Daniels in 2016 may be tied to any official action by Trump as President — he did not take office until Jan. 20, 2017 — the Supreme Court’s ruling nonetheless presented an opportunity for Trump to test the question, necessitating the sentencing delay as both teams of lawyers get a chance to argue.
Otherwise, Trump would have been facing sentencing on July 11 — with the potential of being imprisoned — just days before he was set to accept the Republican Party’s nomination at the July 15-18 convention in Milwaukee, Wis.
If Trump had been jailed, there certainly would have been calls — even if unsuccessful — to replace Trump as the candidate at the convention, similar to the calls now to replace President Joe Biden after displaying visible confusion and an inability to coherently convey his thoughts in his June 27 debate with Trump.
Just imagine such an outcome: After nearly 17 million votes were cast for Trump in the Republican Primary as he swept 49 out of 50 states, and more than 14 million votes were cast for Biden as he won 50 out of 50 states, somehow, the crises of Trump’s conviction and Biden’s enfeeblement could overturn the verdict of voters.
Certainly, that was and is the point of the Trump prosecutions: To make it so he could not win the primaries, or if he won the primaries, to push the party to replace him at the convention, or if nominated, to render him unelectable in the general election. But with Trump having led national polls since Sept. 2023 — implying the national popular vote is in play — and his lead only widening after the June 27 debate, the gambit to prosecute Trump appears to have backfired.
Now, the prospects of a crisis convention have been averted, thankfully, as the prospect of the leader of the opposition party being jailed just days before his nominating convention would have truly been dictatorial — the prosecutions in New York, Georgia, Miami, Fla. and Washington, D.C. are all led by Democratic prosecutors — and have the appearance of taking the choice of the president away from the American people.
Whatever the merits of his presidential immunity appeal as it relates to the New York case, the Sept. 18 sentencing only delays the same exact constitutional crisis in the presidential election, where Trump could be potentially imprisoned, this time as the Republican nominee — even if nobody is expecting such an outcome — less than two months before Election Day.
For Biden’s part, if he is unable to serve as a candidate, there appears to be no way he could possibly continue serving as President, meaning he should either resign or else Vice President Kamala Harris and the Cabinet need to invoke the 25th Amendment, whatever the political fallout of such a chaotic undertaking might be.
If, by then, polls still show Trump ahead of Biden (or whoever replaces him), Judge Merchan will have to decide if he alone will be the person who potentially determines the outcome of the 2024 election by either jailing Trump, or letting him go, with all of the unintended consequences that follow each option.
It could be that jailing Trump makes him unelectable and the Democratic nominee would easily win, or that it might significantly backfire, and catapult Trump to a landslide. Nobody knows the outcome.
If nothing else, the delay now means if Democrats including Merchan are dedicated to putting Trump behind bars, they’ll have to also contend with the fact that he will by then officially be the Republican nominee for president who will be on the ballot in all 50 states. On July 11, the convention wouldn’t have happened yet. Which serves everyone right. If Democrats want to jail their opponent, there should be no half measures, let it be the nominee. Show everyone what tyrants you really are — or cowards as you shrink from operating the political guillotine.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
