Ricky Carioti/Pool via CNP/Zuma
The Supreme Court on Thursday narrowly denied President-elect Donald Trump’s last ditch effort to delay his sentencing in the New York hush money case in which he was convicted of 34 felony counts in May. That sentencing will now proceed tomorrow, January 10.
Trump was found guilty of falsifying business records to cover up payments to adult film star Stormy Daniels in the lead-up to the 2016 election. The sentencing, as Judge Juan Merchan has already indicated, will not include prison time, a fine, or any condition of probation. But it will, officially, make Trump a convicted felon just 10 days before resuming office. Trump will still have the opportunity to appeal his conviction, and the Supreme Court might yet overturn it in the likely scenario the case is appealed to the highest court.
On multiple occasions, the Supreme Court has come to Trump’s aid. On Thursday, it stood down—at least for now.
Rather than intervene before Trump has exhausted his appeal opportunities in state court, the justices’ decision not to intervene allows the New York courts to handle the case as it would handle any other criminal proceeding. This decision is not a sign that the justices are skeptical of Trump’s legal demands or that they won’t later throw out his conviction. But the court—which has in the past year repeatedly taken extraordinary steps to protect Trump from legal liability—stood down. At least for now.
The decision was 5-4. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh would have granted Trump’s request and stopped the sentencing.
In July, the Supreme Court issued a momentous decision granting Trump sweeping immunity from prosecution for official acts made while president. Chief Justice John Roberts’ generous creation of this new right to immunity even barred most evidence from being admissible if it involved official acts. It is this aspect of July’s ruling that Trump attempted to leverage to halt his sentencing, arguing that his trial was tainted by evidence that entangled with his official duties as president. In their petition to the court, Trump’s personal attorneys (both of whom Trump has announced he will nominate to top positions at the Justice Department) argue for a very broad definition of inadmissible evidence, including social media posts from the president’s official account, information on financial disclosure forms, and testimony from former aides about conversations with the president.
In the court’s order, it listed two reasons for denying Trump’s emergency appeal: First, the issue can be resolved in the regular appeals process. Second, because Merchan has already promised to avoid a sentence that would impinge on Trump’s freedom, it will not detract from his ability to carry out his duties. The four dissenters did not give a reason for why they would have granted Trump’s request.
Had the justices halted Trump’s sentencing, it would have been ominous on two levels: First, as a sign of deference and rule-bending for Trump’s benefit, and, second, as a signal that the immunity decision will be interpreted in the broadest way possible.
Several justices’ impartiality towards Trump is in serious doubt. Ginni Thomas, the wife of Justice Clarence Thomas, encouraged efforts to overturn the 2020 election. Justice Samuel Alito flew two flags at his residences associated with the Stop the Steal movement attempting to overturn the 2020 election—but blamed both displays on his wife. Both justices would have halted the sentencing. On multiple occasions in the last year, the Supreme Court has come to Trump’s aid. It ensured he could remain on state ballots despite the 14th Amendment’s prohibition on insurrectionists holding federal office and it repeatedly delayed Trump’s trial for attempting to overturn the 2020 election until, at the last possible moment, it deeply damaged the entire case with its shocking immunity decision.
On Tuesday, hours before this appeal was filed, Alito and Trump spoke by phone. Alito claims that the call was to recommend a former clerk for a job in the new Trump administration. But this former clerk is already a partner at a big law firm and already served in Trump’s previous administration in the high-up position of chief of staff to the attorney general. He comes from a line of prominent Republican attorneys. But, as Alito told ABC News, which first reported the call, it was Alito who needed to personally provide a reference for his former clerk.
“William Levi, one of my former law clerks, asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position,” Justice Alito told ABC News. Alito denied discussing Trump’s petition in the New York case or any other business he has pending before the court, or likely will in the future.
That may be true. Perhaps Trump is far more involved in reference-checking than previously thought. But the connections between Trump and the GOP-appointed justices keep getting closer, and the ethical lines blurrier.
