Attorneys for President-elect Donald Trump asked the judge in his New York City hush-money case on Friday to dismiss the indictment and overturn the jury’s guilty verdicts.
Earlier this week, Manhattan District Attorney Alvin Bragg submitted the state’s response to Trump’s motion to dismiss.
In the 82-page filing, the Democratic Party prosecutor suggested that New York Supreme Court Justice Juan Merchan use the “abatement-by-death” process to give the case some finality.
In the 23-page response, 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, dismissed the idea as an attempt to “fabricate” a “unconstitutional” adventure into “Wonderland” and “make new law contrary to binding precedent.”
In the state’s brief, Bragg admits that New York does not use the type of abatement that his office proposes and refers the court to the “Alabama rule.”
The district attorney sums up the principle as follows: “When a defendant dies after he is found guilty but before the conviction becomes final through the appellate process, the court places in the record of the case a notation to the effect that the conviction removed the presumption of innocence but was neither affirmed nor reversed on appeal because the defendant died.”
The state’s brief then explains how Merchan may apply the Alabama rule to the current case involving the 45th and 47th presidents:
In this way, the Alabama rule abates the criminal proceedings without vacating the underlying conviction or dismissing the indictment. As applied here, this Court could similarly terminate the criminal proceeding by placing a notation in the record that the jury verdict removed the presumption of innocence; that defendant was never sentenced; and that his conviction was neither affirmed nor reversed on appeal because of presidential immunity.
It makes sense to borrow from the manner in which courts address abatement because many of defendant’s arguments here parallel the arguments made in favor of dismissal and vacatur upon a defendant’s death.
Those ideas, according to Trump’s response, are nothing short of appalling—and, in any case, are illegal.
“As a further illustration of DA Bragg’s desperation to avoid legally mandated dismissal, [Bragg’s office] proposes that the Court pretend as if one of the assassination attempts against President Trump had been successful,” the most recent petition reads.
“”[Bragg’s office] also believes it makes sense for Your Honor to pretend the Court is in Alabama.” “These abatement arguments are absurd.”
While the abatement-by-death suggestion made headlines, it is just one of many arrows in the district attorney’s quiver.
After Trump’s second term as president ends in January 2029, Bragg’s office made it clear late last month that prosecutors plan to move forward and request a sentence in connection with his 34 felony convictions on charges of falsifying business documents.
That is still Bragg’s preferred method, effectively putting the case in formal legal limbo for the next four years. However, this week, Bragg theorized that Trump could receive an immediate formal sentence without facing any consequences.
The motion states that if the defendant receives a sentence before his inauguration, a stay would simply halt the appellate proceedings. “If the defendant takes future steps to stay his sentencing and succeeds in doing so, such a stay would delay his sentencing until after the end of his presidential term.”
Trump completely rejected that idea as well.
“The Zombie Case, which started in 2018 and involves decades-old false allegations, cannot ‘simply’ be ‘stayed’ until President Trump leaves office in 2029,” according to the defense response.
“Bragg’s office’s proposed course of action would violate not only presidential immunity but also due process, the Sixth Amendment, and the Eighth Amendment.”
According to the once-and-future president, a recent memo from the Office of Legal Counsel, which special counsel Jack Smith relied on, foreclosed the possibility of keeping a sitting president under criminal sanction—period.
While the case law cited by Smith—and later relied on by the defense—is undoubtedly federal in nature, Trump claims the parallels are obvious and applicable here.
The defense reply explains this in detail:
President Trump would be “legally stigmatized,” in violation of the Constitution, by the proposed stay because he would be denied “any meaningful opportunity to respond to his accusers in a court of law.” The “mere pendency of an indictment” violates Presidential immunity. OLC’s conclusions are grounded in reality and compelling. [Bragg’s office] offers no persuasive reason to avoid them. Staying the proceedings during President Trump’s second term would impede the Presidency and give New York County intolerable leverage over the Executive Branch, which exists for the protection of the entire Nation…
In addition, a stay would require President Trump to lead the Country while facing the ongoing threat that this Court and [Bragg’s office] are prepared to impose imprisonment, fines, and other punishment as soon as he leaves Office. To be clear, President Trump will never deviate from the public interest in response to these thuggish tactics. However, the threat itself is unconstitutional, under the Presidential Transition Act, the Presidential immunity doctrine, and the Supremacy Clause, because it would exacerbate the stigma and distraction burdens discussed above…
Trump’s team reiterates the arguments from their earlier brief. The presidential immunity doctrine, the Presidential Transition Act, and the United States Constitution’s Supremacy Clause all require dismissal.
The heart of the defense brief, however, is filled with attacks on Bragg’s character, with a heavy emphasis on the abatement idea.
Again, the defense filed:
[Bragg’s] brief includes a request that the Court disregard the New York Court of Appeals and fabricate unconstitutional “abatement” law, all based on an extremely troubling and irresponsible analogy between President Trump—who has survived multiple assassination attempts, and will soon be “the only person who alone composes a branch of government”—and a hypothetical dead defendant. That unhinged contention demonstrates conclusively that DA Bragg and [the DA’s office] cannot be trusted to separate their political motivations and careerist ambitions from their obligations to seek justice.
