Columns, Criminal law, Media, Politics

The Layaway Presidency: How Alvin Bragg Would Create a New Constitutional Creature

Below is my column in the New York Post on the effort of Alvin Bragg to suspend the criminal case against President-Elect Donald Trump for almost five years. It would be a terrible choice for the court and for the country.

Here is the column:

Manhattan District Attorney Alvin Bragg pushed Tuesday to create a new constitutional creature: the layaway president.

It was once common for stores to hold expensive items that you really wanted but could not make the payment.

So they were tagged and kept on the shelf until you were ready to redeem your item.

For Bragg, that leaves Donald Trump tagged until 2029.

In a filing before Manhattan Justice Juan Merchan, Bragg suggested that the court should stay the pending criminal case and defer any sentencing “until after the end of defendant’s upcoming presidential term.”

That would allow a city prosecutor to put a leash on a sitting president for four years.

Trump would govern by the grace of this local judge and district attorney.

In the meantime, pundits and politicians could portray the president as free on a type of work release program.

The suggestion is appalling to most of the people in the country, including the majority of voters who voted for Trump.

Vice President Kamala Harris and Democrats ran on this and other cases in the election.

The result was arguably the largest jury decision in history.

That being said, I do not believe that the mere election of a president negates jury verdicts on 34 criminal counts.

But ample reasons exist to overturn those verdicts or to dismiss this case.

For example, after the verdict, the Supreme Court rendered its immunity decision barring the use of certain evidence against a president.

Some of the evidence used in the Manhattan case likely fell within one of the protected categories.

The prosecutors not only elicited testimony from Trump aides in the White House but then doubled down on the significance of that evidence in their closing arguments.

Merchan could declare that the court cannot rule out the impact of such testimony on the final verdict.

Even if Merchan, as expected, does not dismiss the case on the basis for the immunity decision, the trial was rife with reversible error.

This was a raw exercise of lawfare and Merchan did little to ensure fairness toward the defendant.

Yet none of those errors can be likely addressed until Merchan reaches final decisions on the motion to dismiss as well as the sentencing question.

While that will mean that Trump could, upon possible sentencing, formally become a convicted felon, the matter can then be finally pried out of the hands of Merchan and taken to higher courts for review.

The worst possible option is the one suggested by Bragg, who would adopt the popular persona of Trump’s turnkey.

The President would be seen by many as governing on a type of conditional status from one of the most politically compromised prosecutors in the country.

For Bragg and other Trump opponents, that may be far more satisfying than a sentencing now given the unlikelihood of any jail component.

After the years and millions spent on the case, it would be the ultimate buzz kill to have Trump sentenced to some fine or other non-carceral penalty.

Many Democrats want to have Trump govern with an asterisk of a “President pending sentencing.”

Instead, Trump would govern with the clock ticking toward a sentencing date.

It is a dangerous precedent. Such pending sentences can have a coercive impact on a president in dealing with given officials, including a state governor who might be willing to pardon a president.

Consider the effort of the governor of New York in restoring the lucrative state and local tax, or SALT, deductions.

There is no reason to believe that Trump would succumb to such leverage (and he has already indicated that he would consider the change).

However, any decision on policies like SALT would be the subject of speculation of whether a reduction in taxation was made in the hope of a reduction in incarceration.

Critics would suggest that New York is yanking on the leash to achieve policy advantages.

This is the same judge and prosecutor who gagged the leading candidate for the presidency in discussing aspects of the case in the months leading up to the election.

Now, they would allow him to govern pending their own suspended decisions on his future.

The Trump case was always a thrill kill for Bragg.

Under Bragg’s proposal, his supporters would prolong that thrill for four more years.

The cost, however, would be devastating for the country.

This country needs a president, not a president on layaway from the Manhattan District Attorney.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”

 

361 thoughts on “The Layaway Presidency: How Alvin Bragg Would Create a New Constitutional Creature”

  1. I hope that Trump acts the way we all think Trump acts and actually gets tough with NY and NYC, but my guess is that he will get all weak in the knees and end up playing nice with the city and state.

    Does anyone think that the Bidens, Obamas or Clintons wouldn’t punish New Yorkers for treating them in this fashion? rather Trump will get rid of the SALT tax deduction that treats the rich the way the left claims they want to be treated. Trump will play nice with the city and state as they both continue to let this sword of Damocles hang over his head.

    Does anyone think that Trump will cut the funding for any city or state that continues their sanctuary madness? The left cut off all funding for highways if the states didn’t raise the drinking age or lower the speed limits back in the day.

    Trump, who I whole heartedly supported against Harris/Biden has this odd need to appease the likes of the NY Times and other lefty losers that will never accept him.

    Come on Donald, the left impeached you, attacked you with Mueller, tried to bankrupt you with a nonsense case, tried to imprison you with another nonsense case and even tried to weaken your SS detail protection hoping they might get you killed, DO NOT PLAY NICE WIT THEM!

    1. * It’s a good example that no State truly acts alone. The criminal policy in NY had repercussions in GA. Ibarra and his murder and other crimes should have been confined to NY. It’s the actual reason the policy is federally illegal. These are illegal federal policies.

  2. If Trump and his cabinet people are in the mood to hurt the people that did Lawfare against Trump and went after Trump supporters they will go after these various people, the cities, counties, and states. I do not think these cases can last four years until Trump is out of office as there will be massive political hits made on New York and the people that started this. The Federal Government using the DOJ and ICE will take apart New York politicians at various levels. Further they can also take down state Judges for not following the Federal Law with illegals and other laws.

  3. At some point (which we are well past), this is a violation of Trump’s due process rights. I assume this can be addressed by an extraordinary writ to federal courts.

  4. “Sixth Amendment
    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

    Is sentencing not part of the trial process? If so, how is it not subject to the “speedy” requirement (ignoring for this discussion the gross violation of the “impartial jury” part)? Trump seems to have the legal resources (private and public) to challenge the delayed sentencing process on that basis; I would like to see him do so. Success in such a motion would put Bragg in a very bad spot that he richly deserves to inhabit. And maybe it would have the side effect of blunting some of these ridiculous efforts at governance by lawfare.

  5. I wonder if Bragg is looking for an off ramp. I wonder if the whole case is looking for an off ramp. A bad case that is under appeal and likely to be overturned. Kick the can down the road and hope everyone forgets about it. Sound plausible?

    For those of you that think Bragg is trying to cuff Trump, here is my thought. The dog caught the car, now what. Bragg could have asked to have a sentence prior to the election if he was so cocksure. Waiting till after the election would have given the protection he needed if Harris had won, but he still has a narrow window. Trump is not President yet and he could try and handcuff him with a sentence. He must know he will be under the gun with a Trump administration and dragging this out helps by not aggravating his administration. It will be forgotten and when Trump overturns the verdict, it will be old news and not much cared about. An old Clinton move.

    1. Trump will investigate THEM ALL for a Conspiracy to violate an individuals constitutional rights. They all TARGETED a man then went in search of THE LAWS. He thinks if I hold this over him maybe he will not come after me, lol.

    2. ” It will be forgotten and when Trump overturns the verdict, it will be old news and not much cared about. ”

      I would much prefer Trump exert pressure to move the process ahead. At one time I feared that the sentencing might be used as a ploy to avoid certifying him as POTUS, but it no longer looks like that option is on the table for the Dims, and inauguration is only 6 weeks away now. I do not see that he has much at all to lose by exerting that pressure, and all of us might gain a lot by the virtual public neutering of exploitative pandering a-holes like Bragg.

  8. Perhaps enough sane, informed citizens of NYC will “lay away” mr. bragg with a recall election; oh, what am I saying, there aren’t enough sane, informed citizens in that cesspool…

    1. Bragg will be investigated at the federal level in NY for his many crimes as we know he is acting against the law.

    4. “Trump better hope JD Vance wins the Presidency in 5 years to pardon him.”

      Commies better hope their hero, The Big Guy, isn’t prosecuted by Trump as The Big Guy worked with prosecutors to take out Trump.

      The Big Guy’s carefully selected Special Counsel from his own DOJ only had the power to say he wouldn’t indict his boss, The Big Guy. He didn’t have the power to give amnesty to The Big Guy.

      Commie druggy dreams: Bragg’s show trial convictions would survive appeals courts and end up with Trump needing a pardon from Vance.

  10. Clearly, Alvin Bragg does not see it this way, and that is what matters. Bragg will continue to do whatever he wants unless he’s kicked out of his office. Unfortunately, New Yorkers have been easily brainwashed by the media, so without contradictory influences to change opinions, they’ll vote whichever way the media says to.

  11. Bragg has put everything back in his co-conspirator Judge Merchan’s hands. He will decide whether to grant this on the basis of what is best for him and his daughter as they’ve cashed in on this case. Father and daughter learned from father in son using the Vice President’s office as their corporate office.

    While Democrats will howl in denial, Merchan knows that sentencing will put his Lavarentiy Beria style trial in a higher court’s hands. Merchan knows that a higher court at best is going to order a re-trial on the basis of errors. Or they are going to go into great detail, castrating and eviscerating him with a long list of every flaw, fault, and judicial bias that came from his bench during the trial.

    So does he throw out the Soviet style show trial Bragg and he put together right now and avoid a critical review years in the future? The Dennis and George Shiff Show of New York will turn on him like rabid feral cats.

    Or work with his co-conspirator Bragg one last time. Knowing there’s a possibility that at some point in the next four years that for other political reasons a New York government will throw out the prosecution, saving him from New York outrage that he’s responsible for letting Trump escape.

    At the same time, Merchan realizes that there’s the possibility that either Bragg or himself won’t be around four years from now. One or both will have capitalized on this trial and moved on and up – maybe Bragg will be congressman Bragg two years from now. A different judge and/or prosecutor will have to stickhandle the mess they’ve made.

    But at this point, Merchan has profited financially and Bragg politically on New York’s visceral hatred of Trump. They just need to decide how to avoid messing that success up.

    It’s not as simple as “Trump should put them all in jail”. But like schoolyard and bar room bullies, the Merchan/Bragg gang, the Obama/Comey gang, etc are never going to change how they act as long as none of the blood on the ground is theirs, only that of those they attack.

  12. I cannot believe the impotence of our legal system. I feel like an unarmed colonist in the fight for freedom.
    If Trump can be subject to this travesty, everyone can. Including lawyers.

  13. This is the first president in over 200 years that’s a convicted felon and tried to subvert the American system of government. Voters have never elected a serial felon to office, it’s new ground.

    The problem is the person not the system of justice!

    1. Except the supposed felonies are complete bogus brought on by hyper partisan hacks, one of whom was ILLEGALLY appointed ( jack smith). climb back under your rock

      1. Guilty verdicts are decided by citizen juries, not political hacks! 34 citizen juries found Trump guilty 34 times!

        1. “Guilty verdicts are decided by citizen juries….” I guess you think that any and all jury verdicts handed down in 1930-50s Ga and Mississippi are just and fair? I guess that you don’t believe in appellate review? I guess you are an idiot!!!!

        3. “Guilty verdicts are decided by citizen juries, not political hacks! 34 citizen juries found Trump guilty 34 times!”

          Well, it was only one jury, and if the judge and the prosecutor conspired to misdirect the jurors regarding the law is the verdict even remotely valid?

          1. So sentence him immediately so that he can appeal this or any other mater of law.

    3. This is the first president in over 200 years that’s a convicted felon and tried to subvert the American system of government.

      Oooohhh! It claims it has concerned about felons in the White House! But only just now… This is yet another police state fascist Anonymous communist that celebrated President Obama and Biden partnering with Clinton to feloniously hire and pay a Putin spy to write their illegal campaign document, their “Trump Russia Dossier”.

      Followed by President Obama ordering the FBI and their Attorney Generals to take that campaign propaganda fraud to FISA courts and perjure themselves to those courts that their fraudulent document was actually verified intelligence agency evidence. Serial felonies repeated multiple times by President Obama. Not a single one of that White House crime cabal indicted, even after four IG reports laying out the fraud. Not a single one even disbarred for those felonies they committed.

      All to rig and subvert the 2016 election. And when that failed, this crime cartel of Democrat felons continued using their felonious document as a bloodless insurrection to take out a sitting president.

      The problem is that these vicious communist police state fascists have successfully avoided ever being indicted and brought to trial. They tore this country apart with their lies for years, and sat on the sidelines laughing at their work tearing their country apart for years.

      And this is why these fans of Lavarentiy Beria style justice take great care to post Anonymously. They’re cowards attempting to strike while concealed in the darkness as well as vicious Russian style thugs.

    5. Trump used a book keeping trick on $130 thousand Hillary did it on $25 million paid to Steele.Growup

    6. Not convicted unless there is a penalty announced by the judge. Which they dont want to do because they know it will be laughed out of the appeals court when real judges look at it. And if you believe there was really a crime committed here you are a moron. You also know that the 2020 election was rigged. Why was there 11 million more total votes in 2020 than in any other election in history including this last one?

  15. Sick to death of the hate. The modern left are simply insidious. There may very well be such a thing as ‘righteous anger’, but anger is but a call to action. Hatred on the other hand is thinking your rage IS the action itself. It seldom ends well for those carrying the hate.

    This has indeed become a slippery slope, but for the despots, not for the likes of Trump. Not for the likes of us who just want to live free and peaceful lives. These aristocrats and oligarchs, who more greatly resemble psychopaths with every passing day in spite of everything showing how marginal they are, will have no choice but to snap out of it, eventually.

  16. New Yorkers and Chicagoans had best start voting for candidates based upon common sense and not complexion as neither has served them well in the past.

      1. @Upstate

        After the election, these are literally the only places still holding onto their delusions, and at this point we are going by counties. We had a mighty red election map, and it ain’t because we are all conservatives, I’m certainly not.

        America has thoroughly and completely rejected the modern DNC whatever our stripe. I hope that ‘classical liberals’ have the sense to kick the Marxists out of their party for good. It’s going to take time, though; people like Carville have clearly shown they just don’t get it, and worse, *don’t care*. Staunch dem voters are probably even less informed than he. Not even a tiny, microscopic bit of introspection.

        Accept it, generational dems: you no longer have a ‘party’. If you don’t want to be simple tools of a regime that is happy to steamroll free people, then wake the eff up. You will likely not get another chance.

    2. Throw the ultra corrupt Milwaukee into that mix. The only city in the country where a felon can shoot a man 10X, hide from the police at his mother’s house, and not get prosecuted because his brother is the mayor. And lets not forget the massive vote fraud

  17. There are dozens of ways to spank these children. Some will be more fun than others. Let’s watch. It won’t take four years.

  18. How do we ever agree to shake hands with people who exude this level of hatred, animosity, and duplicity? You really can’t. They are an enemy that must be so thoroughly defeated that even the harridans of the Democrats, the stone-cold feminists who despise male authority, brought to heel and banished. They love Europe so much let them live there.

    Remember Pelosi said, Now that he’s been indicted, let him prove his innocence. It’s known as the Code Napoleón, but it’s the rule of despots, royal decrees, and horrendous punishments. The Holy Roman Empire. And Pelosi supports that because she views life from her perch of power and plenty.

    We follow the Common Law. Innocent until Proven Guilty. For all their efforts, they have Not Proven Trump Guilty of Anything. They spare no effort to make allegations, and even when PROVEN FALSE, they continue defending the allegation. Like any nasty innuendo, there’s always some truth in it. Makes for better gossip. The point is to damage the reputation of the target, bringing shame and condemnation upon the now isolated individual, and then declare victory. 34 felony convictions! This is their plan for America, NYC justice.

    They’ve shown no mercy on the most frivolous charges, now let that be a standard in prosecuting any violation WITHOUT violating their rights.

    1. “Hush Money” is known throught the world’s legal system as “settling out of court”…and EVERY magistrate worldwide seeks this…unless Trump is involved.
      Dear Alvin
      IT WAS SETTLED…
      If you need something to prosecute it would be the “breach of contract” which makes the “settlement” money STOLEN.
      Sincerely
      All the folks who would love to see you sharing a cell with Bubba the spiker.

      1. What I find hilarious is that Congress has their own bucket of taxpayer money used for hush money when one of them is accused of sexual misconduct. I believe the slush fund totals 13 Million dollars

  19. OT, WWIII watch! Biden has authorized the provision of antipersonnel land mines to Ukraine. Yep. Biden the butcher, continues to escalate the war tempting WWIII. For a war that could of been ended just after it began. But Biden the butcher said to fight on! For what exactly?

    1. Upstate – The foreign policy establishment wants to destroy as much as possible before their toys are taken away.

      1. Edwardmahl,
        I think it is more like Biden wants to start a war just as he is skipping out the door for Trump to clean up Biden’s mess. Try to distract Trump from draining the swamp.

        1. Or perhaps he cares about peace through strength. You think Reagan would capitulate to Putin and let him reform the USSR?

          Trump is Neville Chamberlain.

          1. Great Aninny, then you go and volunteer in Ukraine while the bombs rain downand we’ll send you umbrellas. We have no interest in Ukraine but Biden clearly needs to save it to avoid indictment. So if you want to see thermonuclear war to protect your senile hero, please leave us out of the party.

            1. Why do you say “we have no interest in Ukraine.”

              Can you locate Moldova on a map? You do realize Putin has clarified it is next, right?

              Putin’s land grab for “ethnic Russians” is just like Hitler’s Sudetenland with ethnic Germans. Did we have an “interest” in Czechoslovakia?

              Read your history, man!

              1. “Putin’s land grab for “ethnic Russians” is just like Hitler’s Sudetenland with ethnic Germans. Did we have an “interest” in Czechoslovakia?”
                Yes, and no.

                1. We absolutely had an interest in standing up to actors who do not respect the sovereignty of other nations. It is the same reason why we have an interest in supporting Israel against a heinous attack by Hamas on its soil.

                  Appeasement does not work. If Trump lets Russia take Ukraine, you better believe Moldova, the Caucasus, the Baltic states, and a land route to connect Kalinigrad to the rest of Russia, are next.

                  1. Anonymous says: “We absolutely had an interest in standing up to actors who do not respect the sovereignty of other nations.”
                    If that is true, why then don’t we stand up to the actors who assist in the violation of our borders? Are we not a “sovereign nation”?

            2. mesopo727272 posted: We have no interest in Ukraine…

              Other than the fact we removed their nuclear deterrent that terrified us by promising that American military strength would be their protector against military aggression. And then in front of the rest of the world, reneged on that promise not only once, but twice.

              Other than the fact that both before and after we reneged on that promise, Ukraine was one of the very first countries to fight by our side from the first day to the last first in Afghanistan and then Iraq. Willing to fight beside us rather than saying “Not our war” – our agreement with Ukraine required us to come to their defense, they only had to surrender their nukes, not come to our aid in our wars.

              Yep, and our national security has nothing to do with what both friendly and adversarial nations think about America after watching America do that.

              Same as no worries about abandoning Afghanistan and enough arms to equip a small NATO nation to the hajjis – along with thousands of Americans, permanent residents and allies to the same hajjis.

              No interest in Ukraine in a world where there’s no 2nd and 3d order consequences for decisions like this.

    2. Biden’s escalation for WWIII is so great, EU countries are preparing for WWIII and even nuclear war. Good times!

      1. The irony is Neville Chamberlain’s appeasement was actually the catalyst for WWiI, not escalation. But I’m guessing you are unfamiliar with history

        1. Neville Chamberlain did not get America into a proxy war with Russia. Nor did Trump. Biden did. If someone is unfamiliar with history it is you who is trying to make similarities between WWII and Biden’s proxy war with Russia.

          1. No it was a combination of Obama for appeasing Putin when he claimed Crimea and Trump for weakening NATO. Putin cultivated a partnership with Hungary, a NATO member, to block resolutions related to NATO membership for Ukraine. And Putin used the Nord Stream 2 pipeline construction to drive a wedge between the EU and the US.

            More immediately, Putin’s military assessment of Ukraine was inaccurate, and a weak and divided NATO is largely to blame for this miscalculation. Had NATO clearly shown unified resolve to support Ukraine in the years leading up the invasion, Putin would have been better informed.

            2. NATO got stronger under Trump. NATO countries spent more money on defense as they are supposed to. Trump just called them out on it.
              As several foreign policy experts have written over the years, some going back a decade, NATO’s eastward expansion is what got us here today. This is a war no one wanted except Biden the butcher and the neocons.

              1. This is false for a number of reasons.

                First, the 2% figure was a GUIDELINE, not a requirement (hence, “as they are supposed to” is inaccurate). There are no legal penalties if they fall short of this target. It serves as an indicator of a country’s commitment to collective defense.

                Second, Trump is not solely (or perhaps materially) responsible for the increase in spending among non-US NATO countries. The turning point was in 2014, pre-Trump, and clearly due to Crimea. Spending increased among these countries in 2015 and 2016 before Trump took office, and they continued to grow during his time in office. Side Note: This is also why Biden should not get credit for increases in Non-US NATO spending in 2021 – 2023, which were a similar reaction to the Ukraine war. Spending increased 2.8% in 2021, 2.0% in 2022 and 8.3% in 2023. Do you similarly credit Biden with these large spending increases?

                Third, it wasn’t NATO’s “eastward expansion” as much as it was the eastward expansion of liberal democratic values that drove Putin to invade Ukraine. As an autocratic leader who has denied his people the human rights we in the West enjoy, such as a free press, an honest judiciary, and especially genuinely contested elections, he is threatened by a liberalizing Ukraine right on his border. After all, Putin’s 22-year tenure rests on banning free and fair elections, stifling dissent, and controlling domestic media, along with official propaganda that excoriates Western institutions and values. This “eastward expansion” is not something we should shy away from, as support for autocracy is on the rise all over the world (including in our own country).

          2. UpstateFarmer says: “Neville Chamberlain did not get America into a proxy war with Russia.”

            Chamberlain was acting on behalf of America????? That’s so disingenuous that it’s worthy of Dennis. Never trust anybody wanting to tell you a careful non sequitur slice of the story, rather than the entire story.

            Chamberlain and similar people from other European countries attempted to appease Hitler to stay out of war – and got WWII instead.

            Meanwhile, FDR figured out if the USA stayed out of WWII just as Wilson stayed out of WWI, America would have national security on the sidelines, out of those wars. They tolerated first the Kaiser and then Hitler killing Americans in their wars for years to stay out of the war. Kind of like we let Iran kill Americans now.

            Years later WWI and WWII started, American appeasement of first the Kaiser and then Hitler ended with Americans dying in those wars when appeasement failed.

            There are no guarantees of deterrence increasing national security – but it doesn’t have the abject history of failure that appeasement does.

            Appeasement that has been failing for centuries before America even existed.

            1. For once, I actually agree with you!

              It is so surprising to me that Trump’s appeasement for Putin and other autocrats around the world is somehow seen as “peace through strength.” It makes the USA and the rest of the West weak.

      2. @Upstate

        Indeed. That is some straight up, psychopathic sheet to do on the global stage, simply out of spite. Words definitely fail. These people are sick.

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