Bonus 116: Trump v. New York

11 days before his inauguration, President-Elect Trump's emergency request that the Supreme Court block his sentencing in the New York hush money case presents an early litmus test for the justices

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

Although I had planned to devote this week’s bonus issue to the latest installment of Karen’s Corner, the news (once again) got in the way—specifically the emergency application (with the amusing if ominous docket number, 24A666) filed by President-Elect Trump, asking the Supreme Court to block Friday’s scheduled sentencing in the New York hush money case.

There’s a lot to say about Trump’s request—filed by his intended nominee to be Solicitor General, John Sauer. At its core, the argument is that the immunity that the Supreme Court recognized in the January 6 case last year undermines at least some of the guilty verdict in the New York hush money case—and so Trump shouldn’t have to go through with sentencing until and unless his appeal of his conviction in that case has been fully resolved. In the post that follows, I endeavor to explain why the second part of that sentence doesn’t follow from the first—and why the Supreme Court should deny Trump’s application regardless of the extent to which it thinks there’s merit to the immunity arguments. (Spoiler alert: Given that Trump’s objections are to the admissibility of certain evidence, not the charges themselves, and given what Justice Merchan has already said about the sentence he’s going to impose, Trump can’t show the requisite “irreparable” legal harm.)

To nevertheless grant a stay pending appeal in circumstances in which it is so difficult to legally justify would be an ominous portent for how the justices plan to approach the second Trump administration—and how willing they will be to bend the relevant legal rules to accommodate the personal preferences of the incoming Chief Executive.

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