Note from Barb: Only One President is
a Felon
Dear Reader,
When I was in about
third grade, my classroom at school had a poster with the images of every
president of the United States.
One oddity that I
noticed was that the poster showed duplicate pictures of Grover Cleveland. I
asked my teacher about what appeared to me to be an error, and she explained
that Cleveland had actually been elected twice, though not back-to-back, the
only president in U.S. history to serve two non-consecutive terms.
Until now.
Donald Trump, of course,
will be our nation’s 45th and 47th president. But that’s not the only unusual feature
about Trump. He is also the only president with a mug shot.
On Friday, Trump will
appear in a Manhattan court to be sentenced for his 34 convictions for
falsifying business records to conceal hush money payments to influence the
2016 election. After several delays, Judge Juan Merchan has scheduled a hearing
to bring closure to a case that has raised novel legal issues regarding the
prosecution of a president-elect. Trump tried to stop the sentencing from going
forward, but Merchan denied his request
and seems prepared to impose judgment.
In an opinion issued last
week, Merchan upheld Trump’s conviction. Merchan also stated that he does not
intend to impose a sentence of incarceration, and, in fact, is likely to give
Trump what is known as an “unconditional discharge.” In other words, he gets
off free – hardly a measure of justice in a nation where no one is supposed to
be above the law. Trump will even be permitted to appear for his sentencing
virtually, saving him a trip to New York. Turns out, that under the law, the
presidency puts you a little bit above everyone else.
Merchan’s opinion is
likely to anger both Trump’s supporters and his critics. But, in my view,
Merchan’s opinion takes a thoughtful approach. The judge explained that he was
attempting to balance three important values – the ability of the president to
carry out the duties he was elected to perform, respect for the rule of law,
and deference to the “sanctity” of the jury’s verdict.
First, it’s obvious that
a president cannot lead the free world from a prison cell. By electing Trump,
the majority of American voters have signaled their desire to return him to the
Oval Office, despite his criminal convictions. Putting him in prison would
hamper his ability to fulfill his duties as our nation’s chief executive and
commander in chief. Of course, Merchan could hit Trump with a hefty fine, or
even delay the sentencing until Trump leaves office in 2029, but he wrote that
it was important to avoid tainting the president-elect with the stigma that
those outcomes would bring so that he could lead the country unencumbered by
penalties hanging over his head.
Second, Merchan wrote
that the rule of law required him to uphold Trump’s 34 convictions. The judge
rejected Trump’s argument that his case should be overturned just because he’s
the president-elect. In July, after the verdict in Trump’s case, the U.S. Supreme
Court held that former presidents are immune from prosecution for alleged
crimes based on their official conduct. That decision came in
the context of the federal prosecution against Trump for interfering with the
2020 election while in office seeking re-election. But prosecution for official
conduct is not at issue here. Trump committed the crimes in this case while he
was a private citizen in 2016, even before he was elected the first time,
leaving his illegal conduct unprotected by any potential claim of presidential
immunity. Trump’s election in November 2024 does nothing to change that result.
Merchan denied Trump’s effort to use a sort of “retroactive” immunity to wipe
clean his convictions by virtue of his subsequent election as president.
Presidential immunity is not a lifetime get-out-of-jail-free card.
Finally, Merchan wrote
that it was critical to our system of justice to honor the unanimous decision
of the twelve jurors who found Trump guilty beyond a reasonable doubt. The
judge wrote that the significance of the jury’s verdict “cannot be overstated.”
Respecting jury verdicts, Merchan wrote, is “a bedrock principle in our
Nation’s jurisprudence” and “a hallmark of our judicial system.”
And so, Merchan reached
a decision that provides sort of half a loaf of justice. If all goes as Merchan
lays out, on Friday, Trump will walk free. But, unless an appellate court
intervenes, his conviction will remain in the history books.
I imagine that future
generations of school children will look at posters like the one I saw in third
grade. Those kids will see two presidents depicted twice, Cleveland and Trump.
But only one will be a
felon.
Stay Informed,
Barb
