Alvin Bragg, in Bid To Keep Case Against Trump Alive, Declares That ‘Presidential-Elect Immunity Does Not Exist’

District Attorney Alvin Bragg’s opposition to President-elect Trump’s motion to dismiss his 34 hush money convictions underscores that the prosecutor intends to press his cases after Trump’s time in office. The 82-page filing to Judge Juan Merchan argues that “President-elect immunity does not exist. And even after the inauguration, defendant’s temporary immunity as the sitting President will still not justify the extreme remedy of discarding the jury’s unanimous guilty verdict.” Trump wants the charges dismissed before he takes the oath of office. Mr. Bragg, whose office recently failed to convict the Marine Daniel Penny, shows no signs of backing down in the wake of Trump’s victory over Vice President Harris in last month’s election. The district attorney requests that Trump receive only “temporary accommodations during his presidency to prevent this criminal case from meaningfully interfering with his official decision-making.”Trump’s preferred course of dismissal would, Mr. Bragg contends, go “well beyond what is necessary to protect the presidency and would subvert the compelling public interest in preserving the jury’s unanimous verdict and upholding the rule of law.” A New York jury returned 34 “guilty” verdicts in May. Judge Merchan has repeatedly delayed determining sentencing, and has not yet ruled on whether presidential immunity mandates those sentences be vacated. Mr. Bragg has encouraged Judge Merchan to explore “various non-dismissal options,” and recommends “a stay of proceedings during his term in office,” which will run until 2029. The district attorney argues that granting Trump’s motion to dismiss would “subvert the compelling public interest in preserving the jury’s unanimous verdict and upholding the rule of law.” The prosecutor also asks Judge Merchan to reject what he calls Trump’s “persistent and baseless attacks on the integrity of this Court and on the People’s conduct during this prosecution.” The president-elect has asked for Judge Merchan to be removed from the case on account of his donations to Democratic causes. The judge’s adult daughter, Loren, is a consultant who has also been active in work on the left side of the political aisle. New York’s laws of criminal procedure allow for the species of dismissal Trump seeks when “some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant upon such indictment or count would constitute or result in injustice.” The 47th president argues that presidential immunity mandates such dismissal. Special Counsel Jack Smith has already ended his two prosecutions of Trump.That retreat was mandated by the Department of Justice’s Office of Legal Counsel, which determined that there is a “categorical” prohibition on prosecuting a sitting president. That guidance, though, only binds federal prosecutors like Mr. Smith — not local ones like Mr. Bragg. Trump, though, maintains that the same logic — fear of encroaching on presidential duties — applies, possibly with even more force, to state prosecutors. Trump claims that the protections of the office already have attached, even though he will not take the oath until January 20. Mr. Bragg argues that the president-elect “does not perform any Article II functions under the Constitution, and there are no Article II functions that would be burdened by ordinary criminal process involving the President-elect.” Article II is the section of the Constitution that ordains that the “executive Power shall be vested in a President of the United States of America.” The president is also commanded to “take care that the laws be faithfully executed.” Mr. Bragg reasons that “only the incumbent President has any ‘constitutionally designated functions.’” The district attorney also argues that the convictions he secured against Trump were for “unofficial” acts — and therefore outside of even the immunity granted by the United States in Trump v. United States, which held that all official presidential acts are presumptively immune. Trump insists that the ruling means that Mr. Bragg’s verdicts can’t stand. The prosecutor argues that the payments to an adult film star, Stormy Daniels, whose real name is Stephanie Clifford, were entirely unrelated to presidential duties.Trump also cites the demands of the presidential transition period as reason to dismiss New York’s convictions. Mr. Bragg “acknowledges the importance of an orderly executive transition and the peaceful transfer of power, but those interests do not require the extraordinary step of abating post-trial motion practice in a pre-existing criminal case.” Trump is the first former president, and the first president-elect, to be charged or convicted.While Mr. Bragg acknowledges that prosecuting Trump while in office is beyond his reach, he insists that “routine judicial process such as that imposed by a criminal subpoena or civil suit imposes only a limited time burden that would not create a … distraction for the President himself.” Trump asserts that even if the case is dormant, its very existence would impair what Justice Antonin Scalia elsewhere called “the boldness of the president.”Mr. Bragg’s request that Judge Merchan provide “accommodations” for Trump while he is in office rhymes with Mr. Smith’s position that presidential immunity is a “temporary” coat of armor that slides off the moment the next president takes the oath of office. If Judge Merchan agrees with Messrs. Bragg and Smith, Trump could ask the Supreme Court to defend his prerogatives — and those of the presidency.

Alvin Bragg, in Bid To Keep Case Against Trump Alive, Declares That ‘Presidential-Elect Immunity Does Not Exist’

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