The once-immense landscape of Donald Trump’s potential criminal liability has been reduced to a small patch of turf defined by whether his conviction on 34 felony counts will stand. Trump is now engaged in an all-out campaign to sweep it away. To prevail, he needs to get a higher court to halt the sentencing that trial judge Juan Merchan has ordered to take place this Friday, January 10. On Tuesday, he lost round one, when the appellate division of the New York state courts refused after a brief hearing to grant his motion for an emergency stay.

Merchan set sentencing after he rejected Trump’s motions for a new trial or to set aside the jury verdict based on Trump’s claims of immunity. At the same time, Merchan strongly signaled that he would impose no criminal penalty and instead give the former president an unconditional discharge as provided for (but rarely doled out) under New York law—no jail, no fine, no collateral consequences whatsoever.

Many Trump antagonists grumbled that Merchan decided to impose what in effect is a nonsentence. But given the state of play, his decision was Solomonic.

It was a foregone conclusion that Trump would face no jail time for the convictions, and any actual penalty—including probation, which carries significant deprivations of liberty for the convict—would almost certainly have been set aside by a court at the beginning of Trump’s presidential term.

What remained was the fact of conviction, the all-important scarlet letter marking Trump as the nation’s only felon president.........

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