Trump hopes to make his one criminal conviction disappear prior to his January 20 inauguration.
- He plans to argue in a filing Monday that he's immune from prosecution even now, as president-elect.
- Sentencing in the NY hush-money case has been indefinitely delayed by this latest dismissal bid
- The US Supreme Court found in July that presidents enjoy broad immunity from prosecution.But is a president-elect also immune?
In a filing due by day's end on Monday, lawyers for Donald Trump are poised to argue just that — that he's immune from prosecution right now.
His hush-money case should therefore be immediately dismissed, and his 34 felony convictions wiped clean, his lawyers said last month that they plan to argue.
"Just as a sitting President is completely immune from any criminal process, so too is President Trump as President-elect," Trump's legal team wrote the trial judge, New York Supreme Court Justice Juan Merchan in a letter dated November 19.
Monday is the defense team's deadline for spelling out to Merchan why a pre-inaugural Trump cannot be sentenced and why the whole case must instead be tossed — as if a nearly seven-year investigation and prosecution by the Manhattan District Attorney's Office had never happened.
The argument that a president-elect has immunity
So why does Trump believe he enjoys presidential immunity from prosecution even now, as president-elect?
Blanche and Bove first tipped their hand on their arguments in a November 8 letter to the judge — written just three days after the election. In the letter, they argue that presidents and presidents-elect are pretty much the same thing when it comes to enjoying legal protections from prosecution.
The two lawyers quote from a 2000 Department of Justice memo barring the federal prosecution of sitting presidents (the same memo cited by special counsel Jack Smith in last week's move to dismiss Trump's two federal cases.)
"The same complete immunity from criminal process of any kind extends to a President-elect during the transition period," Blanche and Bove write, without elaborating on how DOJ policy would extend to a state prosecution like the hush-money case.
"There is no material difference between President Trump's current status after his overwhelming victory in the national election and that of a sitting President following inauguration," the lawyers wrote.
A second argument for special treatment of presidents-elect, made repeatedly by the two lawyers in the past month, draws on the Presidential Transition Act of 1963, which provides for the "orderly transfer of Executive powers."
"President Trump has already commenced this complex, sensitive, and intensely time-consuming process," the two lawyers wrote of the transition on November 8.
Continuing with the hush-money case would "be uniquely destabilizing" and threaten to "hamstring the operation of the whole government apparatus," the two wrote on November 19.
Donald Trump leaves the courtroom after being found guilty on all 34 counts in his hush money trial in Manhattan. Justin Lane-Pool/Getty Images© Justin Lane-Pool/Getty ImagesIn the furtherance of justice
Trump's lawyers have also argued that the case should be dismissed under New York law, which allows an indictment to be dismissed "in furtherance of justice."
A so-called interest of justice dismissal would require Merchan to find "some compelling factor, consideration or circumstance" under which continuing a prosecution "would constitute or result in injustice."
Merchan would be asked to weigh the strength and seriousness of the offense, the extent of the harm it caused, and the "history, character, and condition of the defendant."
He would also have to weigh "the impact of a dismissal upon the confidence of the public in the criminal justice system."
Blanche and Bove did not immediately respond to a request for comment on this story. A spokesperson for the Manhattan DA's office also did not immediately respond to a request for comment.
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