Here are five reasons why Trump might never be sentenced:
Reason #1: Supreme Court gave Trump a potential lifeline
The Supreme Court's July 1 presidential immunity ruling in Trump's federal election interference case included a section that could negate the New York convictions.
Five of the six Republican-appointed justices – all but Justice Amy Coney Barrett – said a jury in a criminal case against a former president can't hear various forms of evidence about official presidential actions.
Trump has since argued that, even if the hush money payment to Stormy Daniels and the falsified business records weren't official presidential acts, some of the evidence presented to secure both the indictment and his convictions ran afoul of the Supreme Court's ruling. For instance, Trump is objecting to testimony from his former White House communications director, Hope Hicks, about events while he was president.
Even if Trump fails to persuade Merchan, he could ask for an appeals court to review Merchan's ruling before any sentencing takes place.
Mitchell Epner, a New York litigator and former New Jersey federal prosecutor, said it's "overwhelmingly likely" that the Nov. 26 sentencing date would be wiped off the calendar based on the immunity issue, even if Judge Merchan rules against Trump.
He said the Supreme Court's ruling will likely give both Merchan and an appeals court pause about going forward with sentencing before an appeal plays out. And Trump can point to other types of cases, such as cases against police officers, where appeals on immunity issues are typically allowed to play out before trial.
Robert McWhirter, who ran for the Democratic nomination for Arizona attorney general in 2022 and has written a book on the U.S. Constitution, wasn't so sure. Under the standard New York criminal procedure rules, defendants must file their appeals within 30 days after their sentencing.
"I would imagine that there has to be a final sentencing," he said.
Reason #2: Political firestorm
Sentencing Trump now that he's president-elect could also create a political firestorm.
That may not sound like a legal argument, but it's still context Merchan and appeals courts will likely consider, Bederow said.
"I do think that any judge can't ignore the 800-pound gorilla in the room, which is this guy was just resoundingly voted to be the next president," Bederow said. "If (Merchan) were to sentence him, this country is going to get torn apart even further at the seams."
Reason #3: Legal roadblocks based on election
Trump's election victory gives him new legal arguments for fighting the sentencing. The Supreme Court's presidential immunity ruling voiced concerns about court proceedings interfering with the presidency. The court said a president can't be prosecuted for official acts unless doing so "would pose no 'dangers of intrusion on the authority and functions of the Executive Branch.'"
Justice Department policy also cautions against prosecuting a sitting president, although it isn't binding on a New York state court.
Trump could argue similar concerns apply to a state court sentencing a president-elect or imposing a sentence that would extend past his Jan. 20 presidential inauguration. The legal idea is that, under the U.S. constitutional system, power is divided between the national government and states, and states can't intrude beyond their sphere.
Legal experts disagree over whether concerns about state court overreach would only come into play after Trump is inaugurated, or whether Merchan or an appeals court would also entertain them at an earlier juncture.
Reason #4: A new trial could face new issues
If Trump gets his convictions thrown out and is shielded from prosecution during his next presidency, Manhattan prosecutors could theoretically pursue a re-trial afterwards. But at that point, Trump could say retrying him violates his constitutional due process rights because evidence and testimony have aged.
"When defendants have that long of a gap between the first trial and the second trial, they will often argue that they can't be put on trial fairly four years later because witnesses' memories will have faded, some people may have died," Epner said.
Reason #5: Trump will get older
If Trump's convictions stand the test of time but he still faces sentencing years from now, his age could also weigh in his favor. In an interview before Trump's election victory, Catherine Christian, a former Manhattan prosecutor, told USA TODAY that even Trump's current age would work to his benefit in a sentencing proceeding.
"It will mess with his brand, but the man is 78 years old, and for someone who's 78 who has no (prior) criminal convictions, the court will look at that," Christian said.
Trump would be 82 at the end of his upcoming four-year term.
"Even in cases where somebody became a fugitive, at a certain age, they're just not going to be punished, and Trump would be the furthest thing from a fugitive," Epner said.
It all adds up to a significant boon for the soon-to-be repeat president.
