D.A. Alvin Bragg urges N.Y. judge to treat Trump as if he died, not dismiss hush-money conviction

Manhattan District Attorney Alvin Bragg has suggested that a New York judge treat President-elect Donald Trump as if he died, in the Democratic prosecutor’s effort to keep alive Mr. Trump’s felony conviction in a hush money trial.

In an 82-page filing last week, Mr. Bragg urged New York Supreme Court Justice Juan Merchan to postpone proceedings until Mr. Trump leaves office in 2029 or use the process of abatement, treating the defendant as though he had died, to ensure the hush money conviction sticks.

Mr. Bragg’s filing was in response to a request from the president-elect’s lawyers for the judge to dismiss the case in light of the Supreme Court’s presidential immunity ruling and the fact that Mr. Trump won the election.

Judge Merchan has delayed sentencing for months, and is weighing the motion to dismiss.

Mr. Bragg suggested the judge could stop short of dismissal and apply an “abatement-by-death” theory to end the proceedings. With abatement, the conviction would stand but no further proceedings — like sentencing or appeal — would take place, according to Mr. Bragg.

“Under the abatement doctrine, courts have considered an analogous question of what to do with a jury verdict and indictment when further criminal proceedings are no longer possible because of the defendant’s death,” the prosecutor wrote.

Mr. Bragg acknowledged a problem his suggestion: New York follows an abatement rule that would vacate the conviction and dismiss the indictment. But he insisted the judge shouldn’t follow New York’s rule this time and, instead, adopt Alabama’s rule.

“Under the so-called ‘Alabama rule,’ 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,” Mr. Bragg’s filing reads.

Mr. Trump’s attorneys called the suggestion “absurd,” Newsweek reported Friday. In their response filed Friday, Mr. Trump’s lawyers said the Manhattan district attorney is asking the judge to “pretend as if one of the assassination attempts against President Trump had been successful.”

Thomas Hogan, a professor at South Texas College of Law and a former prosecutor, said most states would erase a conviction if a defendant were to die.

“If Bragg wanted to treat Trump as the equivalent of dead, that usually means that the conviction disappears completely,” Mr. Hogan said. “A suspect who dies pre-charging may not be charged, a defendant who dies pre-trial requires the dismissal of the charges, and even a convicted criminal who dies while the case is still on direct appeal results in the conviction being invalidated.”

John Yoo, a law professor at the University of California, Berkeley and a former Justice Department lawyer under President George W. Bush, said the suggestion of abatement is “another sad example of how this prosecution not only has made-it-up as it went along, but also runs contrary to fundamental principles of law and justice.”

“To pretend that President Trump is dead for purposes of the conviction deprives him of the opportunity to challenge and overturn the conviction. The trial was deeply flawed on the law and the facts; this is a sorry effort to prevent Trump from enjoying his full constitutional rights to have appellate courts, and ultimately the Supreme Court, review and reverse Judge Merchan,” Mr. Yoo said.

Mr. Bragg won an unprecedented conviction of Mr. Trump in May, marking the first time a former president has ever been prosecuted and convicted of a crime. Mr. Trump was found guilty of 34 felony counts of falsifying business records.

New York prosecutors alleged Mr. Trump reimbursed his former personal lawyer, Michael Cohen, for hush money that Mr. Cohen had paid to adult film actress Stormy Daniels during the 2016 campaign to keep her quiet over an alleged affair. She claims she had relations with Mr. Trump years earlier.

Mr. Trump has denied the affair and any wrongdoing.

The Supreme Court ruled in July that presidents enjoy absolute immunity from prosecution for official actions that are part of their core duties.