'They Call It Lawfare': Trump Faces Sentencing

Jan. 10, 2025

Walking up to 100 Centre Street, through Collect Pond Park, past the professional line-sitters employed by The Line Dudes, LLC, and up to the court security officers who ask to see your press credentials, you would be forgiven for feeling a bit of déjà vu. 

A mere 225 days ago, on May 30, most of the reporters waiting to enter the courtroom doors were exiting them after a jury found then-former President and now President-elect Donald Trump guilty on 34 counts of falsifying business records in the first degree.

But eagle-eyed observers would notice a few differences between then and now. For one thing, it is cold. Very cold. Phone weather apps tell reporters it “feels like” 18 degrees outside, and few have their fingers out to post preliminary analyses on social media. During the trial, some of the press dubbed the drafty courthouse “the Icebox.” Now, the Icebox is everything outside of the courthouse.

As reporters shuffle inside, eagle-eyed observers might also notice a conspicuous lack of security, compared to last year’s multiple layers of magnetometers. That’s because Justice Juan Merchan has allowed the defendant, President-elect Trump, to appear virtually from his residence in Florida. The once and future president has the better end of the deal: phone weather apps tell reporters that in Palm Beach, Florida right now, it’s a balmy 65 degrees.  

And perhaps the most intriguing difference of all: Justice Merchan will allow audio recording of the sentencing for the first time during the entire trial.

In his Jan. 3 decision and order, Merchan indicated his intention to impose a sentence of “unconditional discharge,” because it “appears to be the most viable solution to ensure finality and allow Defendant to pursue his appellate options.” Under NY law, unconditional discharge is release “without imprisonment, fine or probation supervision,” and is “for all purposes a final judgment of conviction.”

Today’s hearing follows a last-ditch effort by Trump's defense counsel to halt the President-elect's sentencing. Last night, in a 5-to-4 decision, the Supreme Court issued an order allowing his sentencing to proceed.

Meanwhile, efforts by Trump and his former co-defendants to block special counsel Jack Smith's final report have been more successful. Part of the report was set to be released today at 10 am—during Trump's sentencing—but it remains enjoined by order of Judge Aileen Cannon at least until Monday.

Having breezed through security, members of the press enter the 15th floor courtroom at about 9:01 a.m. and take their seats on the hard pews. By the number of scarves and winter coats still wrapped around reporters, it appears the Icebox is both inside and outside 100 Center Street. No Secret Service means no signal jamming, one reporter explains to another, so connecting to the wifi should be easy. 

Unless you just jinxed it, replies the reporter.  

An A/V staff member tests the sound. “Testing...1...2...3…,” he says, and then adlibs, “When in the course of human events…” This wins the first laugh of the day as chuckles ripple through the courtroom.

Familiar faces of reporters fill the gallery, and familiar faces of officers fill the aisles. The atmosphere is light and collegial, like a class reunion. A court officer nods in recognition at a reporter and says, “Two months together and we haven't seen each other since.” To which the reporter jokes, “You don't call, you don't write.”

At 9:22, the prosecution enters the courtroom with America's Favorite Paralegals™️ (both of whom have a standing job offer from Lawfare if they want) in tow. Joshua Steinglass, Christopher Conroy, and Susan Hoffinger take their seats (from left to right, facing the bench), with Matthew Colangelo seated just behind them.

Three minutes later, a lone Emil Bove wanders into the courtroom and sits at the defense table.

There is some uncertainty among the press about where Virtual Trump will appear on screen. Four large screens flank the bench, placed high on the courtroom walls, and smaller screens sit low in front of the defense and prosecution. 

At 9:27, Manhattan DA Alvin Bragg and a few additional staff members enter unassumingly and take their seats in the pews behind the prosecution table.

Suddenly, Virtual Trump, sporting a red tie, and Virtual Todd Blanche, sporting a blue one, appear on the small screens in front of the defense and the prosecution. Audible grumbles emanate from the members of the press, who can barely make out the screens from the back.

At 9:31, a gaggle of photographers enters and begins snapping photos of the lone Bove and then, in an awkward and almost surreal twist, of the small screens.

“All Rise,” says the bailiff at 9:34, and Justice Juan Merchan sweeps into the courtroom, resplendent in his robes, judicial authority emanating from his very being. He  bids the gallery a good morning. Virtual Trump and Virtual Blanche appear on the large screens overhead, much to the relief of the press. 

The present parties introduce themselves and greet the judge, who states for the record that  Blanche and Trump are appearing virtually from Florida. The judge reminds the courtroom that, pursuant to his Jan. 3 decision and order, he offered Trump the virtual option and the defendant chose not to be present.

Virtual Trump and Virtual Blanche scowl from on high, seated closely together in the frame, only visible from the shoulders up. The two men look down, then to the side, then down again. So far, they have rarely looked directly at the camera.

“Before turning to the matter of sentencing, I want to confirm that the People and Defense Counsel have both received copies of the probation report,” Merchan says. Bove and Steinglass have not, so he hands them copies and turns to Blanche, who confirms that he and his defendant received a copy electronically this morning.

As the prosecutors and Bove take a few minutes to read through the report in the courtroom, Merchan turns to the screens and asks Blanche if there is anything he would like to put on the record about the probation report.

 “Nothing other than the fact that it was that some of the facts and procedural history, especially involving other cases, are not up to date because of what's happened since the date of the report,” Blanche says. “But otherwise, given what we expect is happening today, nothing.”

 As the prosecution takes another minute or two to review the report, Justice Merchan looks out over the courtroom, stoic but calm. In other words, his typical posture.

 Steinglass has nothing to add, so the judge gets to the main event without further ado. “Let's impose sentence, please,” he says.

 “Donald Trump, you are before the court for sentence following your conviction by trial to 34 counts of falsifying business records in the first degree,” the clerk says. “Before being sentenced, the court will allow you, your attorney, and the assistant district attorney an opportunity to address the court with any matters relevant to sentencing.”

Steinglass stands for the people. “The defendant in this case, as you know, stands convicted of 34 counts of falsifying business records in the first degree, all class E felonies,” he says, reminding the court that the sentences can range from non-incarceratory options to years in prison. However, given “the circumstances of this case, its unique posture and the defendant's status as president elect,” the prosecution recommends a sentence of unconditional discharge, which is precisely the sentence Merchan has already indicated his intention to hand down.

Reminding everyone once again that a unanimous jury found the defendant guilty, Steinglass continues, “Having presided over the trial, Your Honor is very familiar with the conduct, its seriousness, and the overwhelming evidence to support the jury's verdict.” 

“I'm certainly not going to rehash that now,” Steinglass says, which is likely a welcome promise to anyone who remembers the prosecutor’s marathon closing argument in the waning days of the trial.

Steinglass then turns to “the gravamen of the defendant's conduct, his criminal conduct in this case,” which Merchan described as “premeditated and continuous deception” in his Jan. 3 order. Trump’s conduct before, during, and after the trial merits consideration, says Steinglass. He continues: 

Instead of preserving, protecting and defending our constitutionally established system of criminal justice, the defendant, the once and future president of the United States, has engaged in a coordinated campaign to undermine its legitimacy. Far from expressing any kind of remorse for his criminal conduct, the defendant has purposefully bred disdain for our judicial institutions and the rule of law. And he's done this to serve his own ends and to encourage others to reject the jury verdict that he finds so distasteful.

 The prosecutor quotes Trump’s favorite labels for the trial—corrupt, rigged, a witch hunt, and a sham—which the president-elect used “too many times to tabulate.” This rhetoric, says Steinglass, has only ratcheted up since this court's ruling, filled with “unrelenting in his unsubstantiated attacks upon this court and its family, individual prosecutors, and their families, the witnesses, the grand jury, the trial jury, and the justice system as a whole.”

Steinglass references Trump’s ten violations of the gag order, for which he was held in contempt during the trial. “As this court has noted, the defendant's conduct, ‘constitutes a direct attack on the rule of law itself,’” he says. Trump’s public threats to retaliate against the prosecutors and the courts “are designed to have a chilling effect, to intimidate those who have the responsibility to enforce our laws in the hopes that they will ignore the defendant's transgressions because they fear that he is simply too powerful to be subjected to the same rule of law as the rest of us.”

In his 2024 end of year report, says Steinglass, Chief Justice John Roberts warned of the dangers of such conduct, including recent attempts to intimidate judges, as well as the dangers of disinformation.

“Put simply, this defendant has caused enduring damage to public perception of the criminal justice system,” Steinglass states, “and has placed officers of the court in harm's way.”

Steinglass then gives us a brief glimpse into the contents of the probation report, which the parties have seen but the public never will. The author of the report, who interviewed Trump after the verdict, “noted that the defendant sees himself as above the law and won't accept responsibility for his actions,” Steinglass says. “Now, in a typical case, both the offense conduct and these other exacerbating factors would impact the appropriate sentence.”

But, of course, this isn’t a typical case. Far from typical, the defendant in this case will assume the office of the presidency in 10 days, and anything but an unconditional discharge “has the potential to interfere with the defendant's performance of the duties of his office.” And then, as if to put a fine point on it, Steinglass says, “As a practical matter, the most sensible sentence prior to his inauguration is an unconditional discharge.”

It feels like Steinglass is nearing the end of his statement. “The American public has the right to a presidency unencumbered by pending court proceedings or ongoing sentence related obligations,” he says, adding that imposing this sentence ensures that finality. Sentencing also cements Trump’s “status as a convicted felon” while he pursues appeals, and also, presumably, while he assumes office, though Steinglass leaves that unsaid.  

“And it gives full effect and respect to the jury's verdict,” Steinglass says, giving an extra punch to “effect and respect” and pausing for dramatic emphasis, “while preserving the defendant's ability to govern.”

 He wraps up: “The People therefore recommend that this court impose a sentence of an unconditional discharge. Thank you.”

 Up next is Virtual Blanche, who appears on screen sitting next to a stone-faced Virtual Trump.

 Blanche begins by stating that he “very much disagree[s]” with what the prosecution just said about the case, as well as the legitimacy of the case itself.

 “What the government just said presupposes something that we disagree with very much, which was that this was an appropriate case to be brought. It was not,” he says, citing the timing of the case’s investigation and that “multiple prosecutors” declined to pursue these charges. It was only after Trump announced his intention to run for re-election, he says, that the case was started for a third time.

 “A lot of what the government just said presupposes that this case is legally appropriate and that the charges that were brought by the people were consistent with the laws of New York,” Blanche states again. He makes clear that the defense counsel and Trump “very much disagree with that.” To support this, Blanche points to the “many, many, many legal experts” that share the same views that, based on the facts established at trial and the legal basis of the prosecution’s argument, the case should not have been brought.

 “But it's also not just the legal experts, not just counsel, and not just President Trump,” Blanche continues, “but the majority of the American people also agree that this case should not have been brought.” He points out that this case marks the first time in American history that a presidential candidate was on trial during an election season, and argues that the case gave American voters the opportunity to “see and decide for themselves” whether the case should have been brought against Trump.

 “And they decided,” Blanche says definitively. “And that's why in 10 days President Trump is going to assume the office of the President of the United States.”

 Blanche then reminds us why we’re here today, for the court to “sentence President Trump to unconditional discharge.” And for that, he claims, “it’s a very sad day” for Trump, his family, his friends, and the entire country, because this case was “brought by a district attorney who promised that he would go after President Trump if elected, and felt like he had to go through with that promise.”

 “And that’s so sad,” he says. “And I hope, and I know that President Trump shares this view, that this will never happen again in this country.”

 As Blanche speaks, slowly and deliberately, Trump leans forward looking bored.

 To end his remarks, Blanche notes that defense counsel will certainly pursue an appeal of the verdict and “what happened during this investigation.” He notes that while the defense very much believes that no sentence should be imposed, and that the case should be dismissed, “the only appropriate sentence,” if one must be imposed, “is a sentence of an unconditional discharge.”

“Thank you,” Justice Merchan says to Blanche. “Would your client like to be heard?”

The question hangs in the air for a beat, but there’s little suspense surrounding the answer. As a criminal defendant on trial in Manhattan criminal court, the self-defined showman swapped his usual theatrics for silence. Despite frequent proclamations that he would “absolutely” testify at trial, he declined to do so. Instead, the words Trump uttered on-the-record in court were limited to one- or two-word responses to procedural questions from the presiding judge: “Yes,” “I do,” “Thank you.”

But now, more than six months after his conviction, Trump has nothing to lose. He’s the President-elect, appearing before a judge who has already announced that he will not be sentenced to jail time.

All of which is why it’s no surprise that Trump has found his voice again.

 “This has been a very terrible experience,” he begins. “I think it’s been a tremendous setback for New York and the New York court system.”

Trump claims that this was a case that the district attorney, Alvin Bragg, did “not want to bring.” 

Then Trump turns to the business records at the heart of the case. Legal fees were marked as “legal expenses” by accountants, he argues. “They weren’t put down by me, they were put down by accountants.” They called a legal fee a legal expense and for this, he got indicted, Trump practically yells the word “indicted.” “It’s incredible, actually,” he says.

To underscore just how “incredible” it actually is, Trump claims that virtually all of the “top legal scholars” and “top legal pundits”—the “ones who are quoted all the time on television”—have said that the case never should have been brought. These “highly respected people” include Jonathan Turley, the George Washington University law professor; Fox News contributor Andy McCarthy; Elie Honig, a former prosecutor turned legal commentator for CNN, “of all places”; and Alan Dershowitz, the constitutional law professor.

“It’s been a political witch hunt,” Trump continues. He asserts that the case was brought so that he would lose the election, but “obviously that didn’t work.” The people in this country watched the case in your courtroom, he tells Justice Merchan. “And then they voted and I won and got the largest number of any Republican candidate in history.”

 Now Trump discusses a key witness in the case: Michael Cohen, his former lawyer and “fixer.” He gripes that he wasn’t allowed to raise an advice-of-counsel defense, and that he wasn’t allowed to use information that would have “totally discredited” Cohen. Instead, Trump complains, Cohen was allowed to “talk as though he were George Washington.”

“But he’s not George Washington!” the President-elect exclaims.

Then Trump moves on to another person who was a frequent target of his attacks during the trial: Matthew Colangelo, a member of the prosecution team who formerly worked at the Justice Department. The Justice Department, Trump baselessly claims, was “very involved” in this case. “You have a gentleman sitting right there from the DOJ,” Trump says, referring to Colangelo. “He got them to move on me,” Trump asserts without evidence.

This has been a weaponization of government, Trump continues. “They call it lawfare,” he says.

Trump ends by telling the judge that he was treated “very, very unfairly.” Then, finally, he's done. 

The judge thanks him before he launches into a monologue of his own. 

Leaning forward in his seat, Justice Merchan explains that imposing a sentence on a defendant is “one of the most difficult and significant decisions that any criminal court judge” has to make.

“In my time on the bench,” he says, “I've been called upon to grapple with this weighty responsibility for countless defendants who have been found guilty after trial for an assortment of offenses ranging from nonviolent class E felonies To the most heinous of crimes, including homicides, sex trafficking, and child sexual abuse.”

Imposing a sentence—no matter how severe—is always a difficult task, he says, and is deserving of careful consideration. However, Merchant notes, “Never before has this court been presented with such a unique and remarkable set of circumstances. Indeed, It can be viewed fairly that this has been a truly extraordinary case.” He cites unprecedented media attention, public interest, and heightened security involving numerous agencies. 

“And yet,” Merchan points out, “the trial was a bit of a paradox because once the courtroom doors were closed, the trial itself was no more special, unique, or extraordinary than the other 32 criminal trials that took place in this courthouse at the same exact time.”

Merchan emphasizes just how ordinary this trial actually was. Like all other criminal trials, he says, “Jury selection was conducted. The same rules of evidence were followed. Opening statements were made. Witnesses called and cross examined. Evidence presented, summations delivered. The same burden of proof was applied and a jury made up of ordinary citizens delivered a verdict. And it was all conducted pursuant to the rules of procedure and guided by the law.”

While one can argue the trial was somewhat ordinary, Justice Merchan observes that the same cannot be said about the circumstances surrounding this sentencing. “And that is because of the office you once occupied and which you will soon occupy again,” he tells Trump.

To be sure, Justice Merchan stresses, it is the legal protections offered to the office of the president that are extraordinary, not the occupant of that office. Those “extraordinary” legal protections, he explains, have been laid out by our founders in the Constitution, and have most recently been interpreted by the United States Supreme Court in Trump v. United States.

The judge acknowledges that there are “considerable” aggravating factors to consider in Trump’s case, some of which were articulated in certain written decisions he issued prior to today’s sentencing. Still, he says, the extraordinary protection afforded to the office of the presidency is a factor that “overrides” all. While those protections do not reduce the seriousness of Trump’s crimes or justify their commission in any way, they are a legal mandate that the court must follow, he explains.

“And it was the citizenry of this nation that recently decided that you should once again receive the benefits of those protections,” Justice Merchan tells Trump. “It is through that lens and that reality that this court must determine a lawful sentence.”

Now Justice Merchan cuts to the chase. “After careful analysis and obedience to governing mandates, and pursuant to the rule of law, this court has determined that the only lawful sentence that permits entry of a judgment of conviction without encroaching upon the highest office in the land is an unconditional discharge,” he says. “Therefore, at this time, I impose that sentence to cover all 34 counts.”

"Sir, I wish you godspeed as you assume your second term in office," Merchan says to Trump in conclusion.

Merchan takes his leave. Virtual Trump and Virtual Blanche disappear from the screens with a “bloop” sound effect. The prosecution exits in an orderly fashion. 

Lone Bove lingers by the defense table and looks at his phone. 

And that's it. At 10:09 a.m., members of the press pack up.

“Will you be back for Luigi?” a police officer asks one of us on the way out.