Judge Juan Merchan could, any day now, declare President-elect  Trump effectively dead — at least in respect of his 34 hush money convictions in New York. That would mean that the case could be frozen for four years — the pendency of Trump’s second term — until there is what might be called a Lazarus moment..

That option comes from Alabama, which calls it “abatement-by-death.” Alabama’s courts have contemplated what happens if a defendant dies after conviction but before a sentence is imposed. The Yellowhammer State mandates that an “action shall not abate by the death of the defendant, but may be revived.”

That possibility has come into focus in the wake of Trump’s victory over Vice President Harris in last month’s election. Months before, 12 New Yorkers brought in verdicts of “guilty” on all counts charged by District Attorney Alvin Bragg. It is Judge Merchan’s task to hand down a sentence, a duty he has now delayed several times. Trump wants the charges dismissed. 

Mr. Bragg, though, urges Judge Merchan to maneuver around this by “various non-dismissal options” that would hold open the possibility of a sentence being handed down in 2029, when Trump is no longer president. Special Counsel Jack Smith dismissed his two federal cases because the Department of Justice determined that there is a “categorical” ban on prosecuting a sitting president. 

That DOJ decision does not apply to local prosecutors like Mr. Bragg — or, for that matter, the indictment handed up at Fulton County, Georgia, where last week District Attorney Fani Willis was disqualified from her racketeering case against Trump and 18 others. If that is not reversed on appeal, a special prosecutor, with discretion to dismiss, would be appointed. 

Mr. Bragg, though, offers Judge Merchan a different  solution, one that the prosecutor himself calls a “novel remedy” that “New York law does not expressly provide for” — but that could offer guidance for an unprecedented situation, what the prosecutor calls “the context of this unique case.” The district attorney reckons that “any remaining steps in this criminal prosecution could simply be stayed … until the end of his term of office.” 

Mr. Smith called the presidential immunity that Trump would enjoy “temporary,” but Mr. Bragg reaches for analogies with the least temporary state of all — death. Stunningly, though, he encourages Judge Merchan to ignore New York state law. Empire State courts have held that if a defendant dies after conviction but before sentencing, “the judgment of conviction is vacated and the indictment dismissed.”

Mr. Bragg, though, reports that “a majority of states no longer follow such a rule and instead have adopted less disruptive remedies that better respect the important public interests in preserving a jury verdict despite the inability to proceed further in a criminal case.”

The DA approvingly cites what he calls “the Alabama rule,” which holds that if a defendant dies after conviction but before sentencing, ”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 contemplates a Lazarus-esque comeback for his charges. Normally, death does not allow for such reversals. 

The Alabama Court of Criminal Appeals held in 2004 that “the overwhelming consensus among the 50 states is that a conviction abates from its inception when a defendant dies during the pendency of his/her appeal as of right.” President-elect Trump, though, has not had the opportunity to file an appeal — that right only obtains once a sentence is handed down. A case as long ago as 1904 ventured that a “judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist.”

In 2022, the supreme court of Louisiana agreed with Alabama that to “abate a conviction would be as to say there has been no crime and there is no victim … when a defendant dies during the pendency of an appeal, the appeal shall be dismissed and the trial court shall enter a notation in the record that the conviction removed the defendant’s presumption of innocence but was neither affirmed nor reversed on appeal due to the defendant’s death.” 

Such a rule would suit Mr. Bragg’s purposes, because it would abate the criminal proceedings against Trump during the pendency of his presidency while preserving the underlying convictions and avoiding dismissal. The district attorney likens Trump’s insistence that he cannot be “subject to further criminal proceedings” to the finality of a deceased defendant’s protection from prosecution beyond the grave. Mr. Bragg calls this the “‘finality’ rationale.” 

Mr. Bragg acknowledges that “New York law does not expressly provide for this remedy.” He reminds Judge Merchan, though, that statute allows judges to “devise and make new process and form of proceedings” and that courts “have ‘latitude’ to fashion ‘innovative procedures.’” The state argues that the “novelty of Trump’s own immunity claims” justifies the consideration of “novel remedies.”

Judge Merchan has already held that Trump is not helped in overcoming the guilty verdict by the Supreme Court’s ruling in Trump v. United States that official presidential actions are presumptively immune. The judge reckoned that the president-elect did not raise those objections in a timely fashion and that even if he had, the convicted conduct was unofficial and therefore not protected.