Where does Trump's New York sentencing stand after massive election win?

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Trump attorney Will Scharf: Judge Merchan has a very serious problem on his hands

Will Scharf, attorney for former President Trump, reacts to the Supreme Court's ruling about presidential immunity on 'The Ingraham Angle.'

Following his massive election victory, President-elect Trump is still scheduled for sentencing in his Manhattan criminal case later this month, with presiding Judge Juan Merchan first ruling whether to dismiss the charges altogether after the Supreme Court's presidential immunity ruling earlier this year. 

Trump was found guilty of 34 counts of falsifying business records following his Manhattan criminal trial in May. District Attorney Alvin Bragg's office worked to prove that Trump falsified the business records to conceal a $130,000 payment to former porn star Stormy Daniels ahead of the 2016 election to quiet her claims of an alleged affair with Trump in 2006. Trump has maintained his innocence in the case. 

Trump is scheduled for sentencing on Nov. 26, which is already a four-month delay from the original date of July 11. 

Trump's lawyers had asked Merchan to overturn the former president’s guilty verdict in New York v. Trump after the Supreme Court ruled in July that former presidents have substantial immunity from prosecution for official acts in office, but not for unofficial acts. Merchan is expected to rule by Nov. 12 as to where the charges stand.

"A normal judge would dismiss this case, and then the DA would have to decide, what — if anything – remains, so that we could consider re-bringing the case. But Judge Merchan has shown himself to be nothing but an ordinary judge. And so the catch-22 here is, if he was normal, he would dismiss it, but because he's not normal, he'll probably deny it. But because it's an immunity claim, that gives the Trump defense team the right, the legal right, to immediately appeal his denial," Cully Stimson, deputy director of the Heritage Foundation's Edwin Meese III Center for Legal and Judicial Studies, told Fox News Digital. 

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Former President Trump takes the stage to address supporters at his rally at the Palm Beach County Convention Center in West Palm Beach, Florida, on Wednesday. (Brian Snyder / Reuters)

Stimson said that even if Merchan denies Trump's claim of immunity, the Trump team appeals the decision and an appellate court also denies Trump's claim, the president-elect would not face incarceration. 

"For all intents and purposes, no matter what happens if [Merchan] denies it, and the appeals court… follow the judge, and then the judge gets to sentence him. Even then the Justice Department will come in and say, ‘Look, under the Supremacy Clause, you cannot impose a criminal sentence, especially one of incarceration on a sitting president.’ And so that case will be on ice until after Trump gets out of office. But as a practical matter, this case and the Fanni Willis case are over," he said. 

Judge Juan Merchan poses for a picture in his chambers in New York on March 14. (AP Photos)

Trump pleaded not guilty in the case and denied any such affair with Daniels. The now-president-elect had railed against the trial as a "sham," while calling Merchan "corrupt" and "conflicted," appearing to refer to the judge's familial ties to the Democratic Party. Trump also lambasted the case as "lawfare" promoted by the Biden-Harris administration to hurt his chances of succeeding in the 2024 presidential election. 

Trump cannot pardon himself upon his inauguration, as it was a state case. 

Former President Trump appears in court with members of his legal team for an arraignment on charges stemming from his indictment by a Manhattan grand jury in New York City on April 4, 2023. (Reuters/Andrew Kelly/Pool)

Stimson continued that, considering the Supreme Court's ruling on immunity, it would be impossible to take a scalpel to the case and remove the evidence connected to Trump's first White House administration and "official acts" in the position from the evidence connected to his life before he was president. 

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"[Merchan] is not your traditional judge, but he's not going to say there's no immunity for Trump because... the highest court in the land has said that presidents enjoy absolute immunity for their official acts, and so he's going to have to recognize that the question is whether he has the temperament and the judgment — which he has proven not to, at least so far — to apply that in a fair and impartial manner and dismiss the charges," Stimson told Fox News Digital. 

"By dismissing the charges, that just puts the ball back in Alvin Bragg's court. If Alvin Bragg wants to double down on stupid, which he's done a lot, he can [reopen the case]. But he's not going to get anywhere with that, because by then, the president will have assumed office. And the Justice Department will move under the Supremacy Clause that you cannot bring your case, your criminal case, against a sitting president while he's the president," he continued. 

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Manhattan District Attorney Alvin Bragg speaks to the media after a jury found former President Trump guilty on 34 felony counts of falsifying business records on May 30 in New York.? (AP/Seth Wenig)

Fox contributor and former Assistant United States Attorney for the Southern District of New York Andrew McCarthy also wrote in an op-ed for Fox Digital this week that Trump would not face prison time in the case. 

"Understand, Trump is not going to prison even if Merchan metes out an incarceration sentence. Though the charges are felonies, they are not sufficiently serious under New York law to merit immediate detention; Trump will get bail pending appeal," he wrote. 

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"Given that Trump is not going to be sent to Rikers Island by a Manhattan judge in any event, it would be prudent to postpone the sentence and allow Trump to pursue his immunity appeal. That would avoid the unseemliness of subjecting the next president of the United States to a criminal conviction and sentence when he is about to take office," he continued. 

"Lawfare was terrible for the country. The resounding win Americans have given Trump should be its death knell," McCarthy added later in his piece.