Alvin Bragg’s Constitutional Chutzpah

District Attorney Alvin Bragg appears to be posturing as a friend of the Constitution in agreeing to delay for four years his hush money case against President Trump. We, though, don’t see a dime’s worth of difference in delaying it for four years instead of pushing for sentencing now. That’s because the threat of a sentence will hover like a sword of Damocles. A greater threat to what Justice Antonin Scalia called “the boldness of the president” is difficult to imagine.Mr. Bragg, while he acknowledged the need for a delay, signaled that he intends to contest Trump’s imminent motion to dismiss the case. The prosecutor writes that the “people deeply respect the office of the president, are mindful of the demands and obligations of the presidency, and acknowledge that defendant’s inauguration will raise unprecedented legal questions.” Nevertheless, the district attorney wants to preserve his case in a deep freeze for four years.The constitutional contradiction, though, cannot be so conveniently compartmentalized. The parchment ordains that the president shall “take Care that the Laws be faithfully executed.” The Supremacy Clause mandates that when constitutional or federal law conflicts with state law — like Mr. Bragg’s prosecution — federal law reigns as part of the “supreme Law of the Land; and the Judges in every State shall be bound thereby.”The Supreme Court this summer in the immunity case, Trump v. United States, found its voice as a defender of presidential prerogatives. Chief Justice Roberts’s opinion explained that the president possesses duties of “unrivaled gravity and breadth” and that to him is allocated “the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.” Presidential protections are “rooted in the constitutional tradition.”Trump contends that the 34 hush money convictions handed up against him cannot survive the immunity he once held for his actions as president and the imminent immunity he will come into as a sitting president. Mr. Bragg argues that “no current law establishes that a president’s temporary immunity from prosecution requires dismissal of a post–trial criminal proceeding that was initiated at a time when the defendant was not immune.”Mr. Bragg urges Judge Juan Merchan to “balance competing constitutional interests” and keep the case but hold off on sentencing until 2029. The president’s boldness, though, is not a matter for balancing tests. Trump will, as president, be required to make a multitude of decisions that touch on New York. It is not far-fetched to imagine that the possibility that he could one day be behind bars there will affect his duties.The district attorney asks Judge Merchan to consider “various non-dismissal options,” but all of them would mean that Trump will take the oath of office under a cloud, even if it is some ways over the horizon. Our worry is not with Trump in particular, but with the office in general. New York harasses Trump today, Texas pursues a Democrat in years to come — the four years of the presidency could become mere intermissions between prosecutions.There is a reason why the DOJ has, for more than 50 years, maintained a ban on prosecuting sitting presidents. Mr. Bragg takes that as signaling that presidential immunity is “temporary,” like the common cold. The Nine, in Trump, reversed judges who mocked presidential immunity. Allowing New York to threaten Trump throughout his presidency is an affront — call it chutzpah — to an office America should be strengthening.

Alvin Bragg’s Constitutional Chutzpah

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