Special treatment? How judges are handling Trump’s lawsuits before the election.
This was supposed to be the week.
Former President Donald Trump’s legal work was about to reach its first dramatic conclusion. Fifty days from a presidential election in which he is the Republican candidate, Mr. Trump would be sentenced in a Manhattan courtroom.
Why we wrote this
A focused story
The US justice system is meant to treat every accused equally. But when that accused is both a former president and a presidential candidate, the courts show the flexibility that accompanies the fundamental principles.
So what would be the punishment? Jail time? A wrist shot?
The answer, the norm in the cases of Mr. Trump of late, is that America will have to wait. Sentencing is now scheduled for late November, following a decision by New York State Judge Juan Merchan.
The cases have charged the courts with an unprecedented challenge: how to accommodate the unique circumstances of this single defendant while upholding the expectation that every defendant is treated equally under the law. But they also revealed that the principles of the justice system have flexibility.
All of this matters because of concerns that Mr. Trump is being treated too harshly, or too lightly, and what that could mean for democratic norms.
“No other former president of the United States has ever been prosecuted, so he’s unique in that way,” says David Alan Sklansky of Stanford Law School. The question, he adds, is whether judges ensure “that the law applies equally to everyone.”
This was supposed to be the week.
Former President Donald Trump’s legal work was about to reach its first dramatic conclusion. Fifty days from a presidential election in which he is again the Republican candidate, Mr. Trump would be sentenced in a Manhattan courtroom.
The prosecution of a former leader is perhaps the latest stress test of the justice system of democracy. So what would be the punishment? Jail time? A slap on the wrist?
Why we wrote this
A focused story
The US justice system is meant to treat every accused equally. But when that accused is both a former president and a presidential candidate, the courts show the flexibility that accompanies the fundamental principles.
The answer, as has become the norm in Mr. Trump’s cases, is that America will have to wait. Sentencing is now scheduled for late November, following a decision last week by New York State Judge Juan Merchan. The decision is symptomatic of the pressures that judges weigh in all four criminal cases against the former and possibly future president.
The cases have charged the courts with an unprecedented challenge: how to accommodate the unique circumstances of this unique defendant while upholding the basic expectation that every defendant is treated equally under the law. But they also revealed that the fundamental principles of the justice system have some flexibility.
All of this matters because of ongoing concerns that Mr. Trump is – or will be – treated too harshly or too lightly, and what that could mean for democratic norms and the rule of law.
Judges presiding over Trump’s cases have made different use of that flexibility. With little precedent for the judges to look to, Mr. Trump has received what some experts see as undue special treatment. Other judges took a harder line. The U.S. Supreme Court set up a new challenge in July — and even delayed some of the cases going to trial — when it ruled that former presidents are entitled to broad immunity from criminal prosecution in connection with his presidential acts.
“No other former president of the United States has ever been criminally prosecuted, so he is unique in that way. But every criminal defendant is unique in some ways,” says David Alan Sklansky, a professor at Stanford Law School.
The real question, he adds, is whether the unique characteristics of the cases “are to be taken into account with the idea that the law applies equally to everyone.”
Sentencing delays are not unusual
Mr. Trump is facing four criminal prosecutions. Two of the cases — a federal prosecution in Washington and a state prosecution in Fulton County, Georgia — relate to his efforts to overturn the 2020 election. A federal case in Florida involves his allegedly illegal retention of documents from the classified government, and the state case in Manhattan concerns accusations of falsifying business records to hide cash payments during the 2016 presidential campaign.
In his order last week, Judge Merchan explained why Mr. Trump, convicted in May in the case of hush money, will not be sentenced until shortly before Thanksgiving.
It is not unusual for sentences to be delayed due to the defendant’s circumstances, and “given the unique facts and circumstances of this case, there is no reason why this defendant should be treated any differently than any other “, he wrote.
The order, he added, “must dispel any suggestion” that the court favors “any political party (or) any candidate.”
Days earlier, in a case in which Mr. Trump faces federal charges related to his attempts to reverse his 2020 electoral defeat, US District Judge Tanya Chutkan had taken a different path. During a procedural hearing in Washington, the lawyers of Mr. Trump proposed put the process on hold until after the election.
“We are put in an incredibly unfair position,” one of Mr. Trump’s lawyers said, according to reports. “We’re talking about the presidency of the United States.”
“I’m not talking about the presidency of the United States,” Judge Chutkan replied. “I’m talking about a four-count indictment.”
Different cases may require different handling
While the two judges appear to be handling their respective Trump cases differently, they are striking injury complaints through the ideological spectrumthey do so because the situations are not comparable, some experts say.
“There is a really significant difference between the stance of the two cases,” says Mary McCord, a visiting professor at the Georgetown University Law Center.
Administrative Office of the United States Courts / AP / File
In one, a judge is asked to sentence a presidential candidate of the major party months before the election. With a possible sentence ranging from a fine and probation to four years in prison, any outcome could be seen as affecting votes for or against Mr. Trump.
In the other, a judge is asked to schedule hearings on a series of preliminary questions, including the extent to which presidential immunity reduces the government’s case. The parties are essentially discussing how to plan those debates. It is reasonable to assume that voters will not be affected by such disputes.
Judge Merchan’s decision in Manhattan also has precedent. A federal judge in Texas, for example, rescheduled a corruption trial of Texas Democratic Rep. Henry Cuellar for March 31, 2025.
But Judge Chutkan’s decision, even lower, is also significant. If she pauses the proceedings in the District of Columbia because of the “sensitive” timing of the election, says Professor Sklansky, it will set a precedent that “gets special immunity from being held criminally responsible, as long as you are running for president.”
Is a former president of the United States a single defendant?
Meanwhile, in another federal prosecution of Mr. Trump, Florida-based U.S. District Judge Aileen Cannon — a Trump appointee — took a more lenient view of this single defendant.
Randomly assigned to the case, Judge Cannon dismissed charges related to Mr. Trump’s allegedly illegal handling of government documents in July after ruling that Jack Smith, the special prosecutor hired to lead the case, had been illegally appointed.
Judge Cannon regularly sided with the former president during two years of pre-trial arguments, and he sometimes suggested that Mr. Trump deserved special treatment.
A prosecution of a former president brings “stigma … in a league of its own,” he wrote in a 2022. order in the case, inflicting “reputational damage of a decidedly different order of magnitude.”
A panel of the US Court of Appeals for the 11th Circuit disagreed. Creating a “special exception” for a former president, the panel wrote in a decision Announcing Judge Cannon’s order, it would “challenge our Nation’s fundamental principle that our law applies ‘to all, without regard to numbers, wealth or rank.’
In a recent short friend in the case, an ethics watchdog and retired federal judge argued that “a reasonable observer could conclude that (Judge Cannon) acted in the belief that prosecuting a former president … is an intolerable affront to his dignity.”
For this reason, among others, they believe that the 11th Circuit should assign the case to a new judge. Mr. Smith, who is asking the appeals court to revive the case, does not make that argument. Whether he looks at the case or not – assuming that the case is resurrected at all – some experts believe that he gave Mr. Trump a favorable treatment compared to other judges.
“The argument (that) you should get a special dispensation not (only) if you are a candidate for president, but if you are a former president … neither of these arguments is consistent with the idea that no is above the law.” says Professor Sklansky.
The pace of criminal cases should be fair for both parties
However, the situation in Florida is unlikely to be resolved before the election. So, as Mr. Trump makes his final appeals to voters in the coming months, he will do so free of any imminent legal danger.
In what is expected to be a close presidential race, spending valuable time on the campaign trail instead of in a courtroom is a boon for him, as is having less media and public attention on potentially harmful legal proceedings. But this is an example of the justice system working as intended. Criminal cases should proceed at a pace that is fair to both parties, not at a pace that is convenient for political campaigns.
“Trump has been very successful in all these cases in using his legal strategy to delay justice,” says Professor McCord.
“He has that right as a defendant,” he adds. “A team of lawyers filing brief after brief … can really overwhelm the works,” he continues. But, “A lot of defendants don’t have (their) resources.”