When President-elect Donald Trump’s latest motion to dismiss his felony convictions in New York hit reporters’ in-boxes on Tuesday, it was immediately clear that the dominant argument was not legal. Every major news organization led with the brief’s comments about President Joe Biden’s statement about pardoning his son, Hunter Biden, namely that his son was “‘selectively, and unfairly, prosecuted,’ and ‘treated differently.’” The brief claimed the same was true in Trump‘s prosecution, and that Biden delivered an “extraordinary condemnation” of his own Justice Department.
But Trump’s defense invoking Biden’s pardon could only be described as a nonsequitur. Even if Biden effectively denounced his own Justice Department in his sweeping statement accompanying the pardon, it was Manhattan District Attorney Alvin Bragg who brought the criminal case that led to Trump’s convictions for falsifying business records to cover up a scandal before the 2016 presidential election. In an effort to tie the state case to an elaborate White House conspiracy, Trump’s motion again pointed out that a top Bragg deputy previously served as a Biden Justice Department official. But every court has rejected Trump’s claims that the federal government secretly instigated the New York case.
Trump’s legal brief had been expected to forcefully argue that his 34 convictions must be immediately dismissed under the Supremacy Clause of the U.S. Constitution to avoid interfering with his transition into the presidency, but the crux of those legal arguments largely fade into the background of a litany of complaints and grievances about Manhattan Supreme Court Justice Juan Merchan, his family, the prosecutors and the White House. The message behind the brief’s structure is clear: Trump, having already outrun most of his criminal liabilities through his reelection, has ratcheted up his plans to put various participants in his trials on the defensive.
The Defendant Plays Offense
Now poised to reoccupy the apex of U.S. executive power, Trump devotes more than a third of his legal brief — and broad swaths of the rest — to accusing the prosecutors, witnesses, and court system of misconduct.
In the brief’s “Table of Contents” alone, Trump accuses Bragg of “[u]nlawful” targeting, the DA’s prosecutorial team of “[u]nlawful” leaks, and Merchan and his daughter of “[c]onflicts.” Two sections accuse Stormy Daniels and Michael Cohen of perjury. (Trump has aired, and lost, most of these complaints repeatedly.) Repeatedly throughout the brief, Trump invokes the GOP-led House Judiciary’s investigation into actions by the judge and his daughter. For good measure, Trump describes his electoral victory with less than 50 percent of the popular vote as “[o]verwhelming,” another issue irrelevant to his claimed immunity.
Trump intends to nominate his attorneys co-signing the brief, Todd Blanche and Emil Bove, to high-ranking positions inside the Justice Department. Blanche has been tapped for the DOJ’s No. 2 spot as deputy attorney general, and Trump intends to appoint Bove as principal assistant deputy attorney general. (Only Blanche’s role requires Senate confirmation.) Once in those roles, federal and New York state ethics rules raise serious questions about whether both attorneys will be recused from any DOJ matters having to do with Trump’s criminal cases.
Trump’s Brief Buries the Lede
Only 25 pages into the brief does Trump pivot to “Applicable Law” related to whether to dismiss the case.
Here, he cites two provisions of New York criminal law governing due process violations or mandating dismissal when “some compelling factor” shows that upholding a conviction would “result in injustice.” Then, the brief finally shifts its focus to the immunity question, which leans on the Supreme Court’s opinion in Trump v. United States (creating sweeping criminal immunity for official conduct by presidents).
The brief also cites three opinions by the Justice Department’s Office of Legal Counsel (OLC), which provides binding interpretations of the law within the Executive Branch. On Sept. 23, 1973, a little more than a month after Richard Nixon’s resignation, the OLC issued its first opinion finding that a sitting president could not be prosecuted. Trump argues that this memo makes clear that hauling him into court “would interfere with the President’s unique official duties, most of which cannot be performed by any one else.” In 2000, after Bill Clinton’s impeachment, a separate OLC memo reaffirmed and expanded the Justice Department’s prior view, while adding that a sitting president also could not be indicted, even as a placeholder charging instrument. The third OLC opinion is the one that Special Counsel Jack Smith solicited after Trump’s election, seeking guidance on whether a president-elect enjoyed this same protection. The Justice Department answered yes. But that precedent is not necessarily instructive here.
The DA Previews His Opposition: The OLC Opinions are Not Applicable Here
The OLC’s opinions are not binding outside of the Executive branch, including on state prosecutors. Trump’s counsel recognized that and cited the OLC opinions in the hopes that courts will regard them as persuasive, calling their conclusions “compelling.” But Bragg will likely argue that the considerations that motivated them do not apply to a convicted president.
Trump no longer has any trial to attend, and his attendance is not mandatory for post-trial and appellate proceedings. Trump’s sentencing has been postponed indefinitely, and it is far from clear that it will be rescheduled before his second term. Even if the proceedings ultimately move forward, any sentence Justice Merchan imposes would certainly not be served until after Trump leaves office. Trump‘s brief did not explain how a criminal trial that has already concluded and a sentence that will not yet be served could burden Trump’s ability to perform his duties in office.
Bragg previewed his intention to make this argument in a letter to the court. “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 from criminal prosecution and that is based on unofficial conduct for which the defendant is also not immune,” the DA wrote in a letter to the court on Nov. 19.
Judge Merchan’s ruling on Trump’s dismissal motion is unlikely to end litigation over the issue, with the defendant requesting advanced notice of any adverse ruling in order to pursue appeals. “Should the Court disagree [with Trump’s dismissal motions] or schedule a sentencing, President Trump respectfully requests notice of those decisions and a two-week stay to provide a reasonable opportunity to pursue federal injunctive relief,” Trump wrote.
DA Bragg’s full response is due one Mon., Dec. 9, and prosecutors signaled their plans to ignore the Trump legal team’s invective to focus on the law.
“Defendant’s continued baseless accusations directed at the People and this Court have no bearing on his extension request and do not merit a response,” Assistant District Attorney Christopher Conroy wrote on Nov. 25.