Supreme Court declines to delay Trump’s hush money sentencing

A closely divided Supreme Court refused to delay Donald Trump’s sentencing in his hush money case, clearing the way for the president-elect to face judgment in a New York courtroom on Friday and to be formally classified as a felon before he returns to the White House.

Trump turned to the high court in a last-ditch effort to stop the hearing, citing the conservative majority’s explosive opinion in July that granted him and other former presidents immunity from criminal prosecution for their official acts.

But five of the nine justices said Trump’s immunity concerns about evidence presented at his trial can be addressed “in the ordinary course on appeal.”

Trump is set to be sentenced Friday, after a jury convicted him of 34 counts of falsifying business records related to a hush money payment made to an adult-film actress during the 2016 election. New York Supreme Court Justice Juan Merchan, who presided over Trump’s trial, has said he does not plan to give the incoming president jail time or probation.

The completion of the sentencing hearing will formalize Trump’s status as the first former president or president-elect convicted of criminal wrongdoing—a designation Trump had hoped to avoid.

A one-paragraph order joined by Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson said the “burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial,” given the lack of jail time and that Trump can appear for the hearing via video feed.

Four conservative justices—Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh—indicated that they would have granted Trump’s request. As is typical in such orders, the justices did not explain their reasoning.

Trump took a somewhat conciliatory tone when asked about the Supreme Court’s order at an event at Mar-a-Lago on Thursday night, saying his case “is a long way from finished” and that he appreciated the justices’ acknowledgement that his appeal can continue after sentencing. He called it a “very good opinion of course.”

The president-elect repeated his claim that the hush money case was politically motivated and designed to try to derail his campaign, and that the judge overseeing was biased against him.

“I’ll do my little thing tomorrow,” Trump added. “They can have fun with their political opponent.”

Trump’s attorneys have tried repeatedly to have his conviction tossed and sentencing delayed, saying he should be shielded from criminal proceedings because they would interfere with his presidential transition.

“Forcing President Trump to defend a criminal case and appear for a criminal sentencing hearing at the apex of the Presidential transition creates a constitutionally intolerable risk of disruption to national security and America’s vital interests,” his lawyers told the justices this week.

The office of Manhattan District Attorney Alvin Bragg declined to comment after Thursday night’s order.

In a filing in response to Trump’s request, prosecutors told the justices there was no basis for the high court to “take the extraordinary step of intervening” to stop the scheduled sentencing. They urged the court to reject Trump’s claim that he is immune from prosecution before he takes the oath of office and said the president-elect will not be unduly burdened by having to attend by remote video feed a hearing that probably will take less than an hour.

New York’s Court of Appeals also rejected Trump’s request to intervene on Thursday.

Trump’s conviction stems from efforts to conceal a payment to adult-film actress Stormy Daniels shortly before the 2016 election to keep her quiet about an alleged sexual encounter with him a decade before. Trump denies the encounter ever happened.

Prosecutors said the Daniels payment—made through an intermediary—should have been reported to campaign finance regulators and was illegally concealed by classifying the reimbursement payments as a legal expense.

It was the only one of Trump’s four criminal indictments to go to trial before the election. He has been dismissed as a party in two of the other cases because he was elected president. The fourth case in Georgia is stalled in appellate litigation and unlikely to move forward against Trump while he is in the White House.

In the New York case, Trump’s lawyers said the Supreme Court’s immunity decision means state prosecutors should not have been allowed to present evidence at trial of Trump’s official actions while in the White House, including the testimony of close presidential advisers.

Merchan has repeatedly ruled that the hush money case was based on private, personal conduct, not Trump’s official duties during his first term, and that the Supreme Court’s decision granting former presidents broad immunity for official actions does not apply.

The judge also has noted it was Trump’s team that asked the court months ago to postpone sentencing—originally scheduled for summer—until after the election. After making that request, Merchan wrote, it is not credible for Trump to say that winning the election makes him immune from being sentenced.

Trump’s emergency request for help from the Supreme Court was an early test for the justices, who are likely to confront a wave of challenges to the incoming president’s controversial agenda, particularly on immigration and the federal workforce.

During his first term, the court pushed back on Trump’s efforts to put a citizenship question on the 2020 Census and to rescind an Obama-era plan to protect young undocumented immigrants known as “dreamers” from deportation. Trump also lost a pair of disputes over subpoenas from Congress and the Manhattan district attorney for Trump’s financial records.

More recently, however, the court’s conservative majority has sided with Trump—including in its immunity decision, which stemmed from the federal charges Trump faced for allegedly conspiring to overturn the 2020 election.

The justices also unanimously kept Trump on the 2024 primary ballot by reversing a ruling in Colorado that would have disqualified him from returning to office because of his conduct around the Jan. 6, 2021, attack on the U.S. Capitol.

As the justices weighed this latest request by Trump, some judicial ethics experts and Democrats called for Alito to recuse himself from the decision, citing a phone call between the justice and the president-elect earlier this week, before Trump filed his appeal to the high court.

Alito did not recuse, however. He said in a statement Wednesday that he took the call from Trump on behalf of a former clerk who is seeking a job in the new administration. Alito said he discussed William Levi’s qualifications with Trump, but not the hush money case or any other business before the court.

The call was first reported by ABC News.

Stephen Gillers, a judicial ethics expert at New York University’s law school, said the call violated the Supreme Court’s code of ethics, which requires justices to avoid the appearance of impropriety in all activities.

“There was no need for Trump personally to check the reference of a lower level appointee,” Gillers wrote in an email. “Others could’ve done that. Alito could have offered a reference in writing.”

Robert Luther III, a George Mason University law professor who served in the White House counsel’s office during Trump’s first term, said the call was routine and raised no ethical issues. “There is nothing wrong with a Judge or Justice sharing their experiences with former law clerks to prospective employers,” Luther wrote in an email.