The U.S. Supreme Court on Thursday rejected Donald Trump’s eleventh-hour request to halt Friday’s sentencing hearing in the president-elect’s criminal hush-money case out of New York.The 5-4 ruling against the 45th and future-47th president was less than one page.

“The application for stay presented to Justice Sotomayor and by her referred to the Court is denied for, inter alia, the following reasons,” the order reads. “First, the alleged evidentiary violations at President-Elect Trump’s state-court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of ‘unconditional discharge’ after a brief virtual hearing.”

New York’s highest court has rejected Donald Trump’s latest bid to halt Friday’s sentencing hearing in the criminal hush-money case that saw him convicted on 34 felony charges.

The New York Court of Appeals’ denial of the request is the latest in a string of legal losses for the president-elect this week as he continues his efforts to have the case dismissed and his conviction vacated.

In a 29-page emergency application filed Wednesday, Trump asked the court to issue an “immediate stay” of the criminal proceedings as he sought reversal of Acting Supreme Court Justice Juan Merchan’s “erroneous rulings wrongly denying President Trump’s claims of Presidential immunity.”

An appeals court in New York has rejected Donald Trump’s latest bid to postpone this Friday’s sentencing hearing in his criminal hush-money case, marking the latest blow in the president-elect’s fight to have the case against him dismissed before he takes office later this month.

“After consideration of the papers submitted and the extensive oral argument, movant’s application for an interim stay is denied,” New York First Department Court of Appeals Associate Justice Ellen Gesmer wrote in a brief order following an emergency hearing on Tuesday.

The hearing was held after Trump on Monday asked Acting New York Supreme Court Justice Juan Merchan to delay the sentencing hearing while he sought reversal of the judge’s decision not to throw out the case based on landmark Supreme Court jurisprudence granting sitting presidents broad immunity from prosecution for official acts taken while in office.

Attorneys for President-elect Donald Trump on Friday again asked the judge overseeing his New York City-based hush-money case to dismiss the indictment and vacate the jury’s guilty verdicts.

Earlier this week, Manhattan District Attorney Alvin Bragg filed the state’s response to Trump’s motion to dismiss.

In the 82-page filing, the Democratic Party prosecutor suggested New York Supreme Court Justice Juan Merchan could use the “abatement-by-death” process to give the case some finality.

In the 23-page reply, a section header refers to the district attorney’s suggestion as a “Dark Dream Scenario” that is “Not An Option.”

Trump’s attorneys Todd Blanche and Emil Bove rubbished the idea as an effort to “fabricate” an “unconstitutional” adventure into a “Wonderland” and “make new law contrary to binding precedent.”

Special counsel Jack Smith filed court documents on Monday to dismiss the criminal election interference case against President-elect Donald Trump before he takes office in January, citing long-standing Justice Department policy prohibiting the indictment and prosecution of a sitting president. The request was subsequently granted by U.S. District Judge Tanya Chutkan just a few hours after Smith’s filing, meaning the charges stemming from Trump’s alleged attempt to undermine the 2020 election on Jan. 6 are over.

While the dismissal was inevitable, Smith requested that the case against Trump be dismissed “without prejudice,” meaning there would be nothing barring prosecutors from bringing the same charges again in the future.

In her order granting the request, Chutkan wrote that “dismissal without prejudice is appropriate here,” noting that Trump’s presidential immunity from prosecution will not be permanent.

“Dismissal without prejudice is also consistent with the Government’s understanding that the immunity afforded to a sitting President is temporary, expiring when they leave office,” Chutkan wrote.

Special counsel Jack Smith’s arguments against Donald Trump’s claims of presidential immunity in the Jan. 6 case were published, to a large degree, on the public docket by the court overseeing the matter in a “voluminous” and “oversized” opening brief on Wednesday.

The filing contains a litany of new, never-before-revealed information about the behavior of the 45th president – and those in his orbit – in the days, weeks, and months following his 2020 election loss.

While the government alleges Trump and several co-conspirators spread “knowingly false claims of election fraud,” there were apparently some claims about the integrity of the election so outlandish that even Trump himself privately expressed doubts.

In one instance, those rebuffed-by-Trump claims were made during a press conference by pro-Trump attorney Sidney Powell, according to the brief. Later, when speaking with others about the allegations Powell released into the public sphere, Trump ridiculed them.

Special counsel Jack Smith on Thursday filed a massive opening brief addressing presidential immunity issues in the Jan. 6 case against former President Donald Trump.

But substantial portions of that brief may never see the light of day — at least so far as the general public is concerned.

Earlier this week, the prosecutor was given permission to file an “oversized brief” by Obama-appointed U.S. District Judge Tanya Chutkan — frustrating a request by the defense to keep the special counsel confined to the typical 45-page limit under local court rules.

In an order, the court gave the government up to 180 pages to make their case — exactly quadruple the typical limits.

Late Thursday, a spokesperson for the special counsel’s office confirmed that their brief had been filed — but the public docket in the case showed no evidence of that filing. In fact, it’s unlikely to.

“We have complied with the court’s order,” the spokesperson told Politico.

With the floodgates on civil lawsuits from police seeking to hold Donald Trump liable for Jan. 6 flung open — and with arguments over his immunity pending before the U.S. Supreme Court — the former president has asked a federal judge in Washington, D.C., to stay civil litigation brought against him invoking the riot at the U.S. Capitol, arguing that “overlap” in civil discovery would violate his rights to a fair criminal trial.

As Law&Crime previously reported, this move was signaled in a joint status report filed earlier in March.

The motion comes as Trump nonetheless claims he is totally immune from prosecution anyway and as more than 1,000 people have faced prosecution for crimes connected to the attack at the Capitol, with more than 200 defendants blaming him directly for inciting them. 

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U.S. Supreme Court

Does narrowed question in Trump immunity case benefit special counsel? Some commentators think so

By Debra Cassens Weiss

February 29, 2024, 3:09 pm CST

The U.S. Supreme Court avoided former President Donald Trump’s most extreme arguments—including that he has absolute immunity from prosecution for any acts while in office—when it crafted the question presented in its grant of certiorari Wednesday in the special counsel’s case over efforts to overturn the 2020 presidential election.

This is the question presented as crafted by the Supreme Court: “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

What is the significance of the narrowed question? Some commentators think that it benefits special counsel Jack Smith.

In a social media thread on X, formerly known as Twitter, Jack Goldsmith, a professor at Harvard Law School, noted that the question focuses on official acts and presidential immunity, rather than absolute immunity.

Goldsmith sees the language as indicating that the high court might be considering a subset of official acts for which a president might get immunity. Those acts could be core functions under Article II or a subset of presidential powers. He speculates that acts carrying immunity might include pardons, firing of officials and self-defensive military action.

“But such a ruling wouldn’t come close to giving POTUS a blank check in office since most official acts would not be core Article II functions,” Goldsmith wrote.

Steve Vladeck, a professor at the University of Texas School of Law, also attributes significance to the phrasing of the question presented.

“My own view is that the [question presented] is written rather carefully to narrow exactly what the court is doing, both to cut out of the case entirely some of Trump’s more … extreme … arguments (like double jeopardy) and to also signal that the court is focused on the official acts question (strongly implying that it has no interest in recognizing any broader immunity),” Vladeck wrote in a Q&A on his One First Substack site.

Even if Trump wins on the narrowed question, there is room for Smith to go forward with the prosecution based on nonofficial acts, Vladeck wrote.

A column in the Washington Post agrees that the “official acts” language means that the Supreme Court could rule for Trump and still leave discretion for Smith to argue that trying to overthrow an election is not an official act.

In a Lawfare blog post written before the cert grant, Martin S. Lederman, a professor at the Georgetown University Law Center, elaborates on why he thinks that there is no serious argument that Trump was acting in his official capacity when he engaged in the alleged conduct.

“For starters,” Lederman wrote, “all but one of the counts of the indictment allege that Trump conspired with others to violate the law through fraudulent conduct. And, with one discrete exception, Trump’s alleged agreements to commit such fraud were with persons outside the government”—including, apparently, four lawyers.

“It’s very hard to see how Trump’s agreements with the five private parties might have been undertaken in his official capacity as president of the United States,” Lederman wrote.

Even if there was such a rare case, “under no possible understanding of a president’s proper role” would an official presidential duty include entering into an agreement to defraud the United States and obstruct its proceedings, he wrote.

Even if the Supreme Court paves the way for prosecution, the timing of its decision could be critical, according to three commentators writing at MSNBC. If the Supreme Court rules in late June, the trial might not begin until September, “making a verdict before the election difficult, if not impossible.”

The MSNBC authors are Norman Eisen, a former House Judiciary Committee impeachment counsel; Joshua Kolb, a former Senate Judiciary Committee law clerk; and Fred Wertheimer, founder and president of Democracy 21.

This week, as Donald Trump‘s legal sagas plod ahead — and Super Tuesday fast approaches on March 5 — both he and special counsel Jack Smith are on tenterhooks as they await significant rulings that could shape the fate of Trump’s many criminal indictments. But anticipation — and tension — reached particularly new heights in Florida where U.S. District Judge Aileen Cannon and Smith went head-to-head.

Law&Crime takes a look at those developments and others in Trump’s cases in Florida, Georgia, Washington, D.C., and New York.