Merchan’s Sham Verdict Violated The Constitution In Spades – Unpacking Some Of The Most Grievous Abuses

We are now a little over two weeks away from President Trump’s sentencing, scheduled for July 11th at 10:30 AM Eastern Time in New York City. By this point, millions of Americans are keenly aware of the legal onslaught initiated by Biden and the Democratic Party against Donald Trump, which has deeply impacted the integrity of our judicial system.

No longer can a criminal defendant, especially one with dissenting or pro-Trump views, be confident that his constitutional rights will be upheld in every court across the nation.

This stark reality, which runs counter to longstanding American principles, underscores the critical stakes of this year’s election cycle. Essentially, what’s at stake is not just democracy, but the very integrity of our justice system.

While Donald Trump and Joe Biden’s names will appear on the ballot this fall, voters will effectively choose between two fundamentally divergent – and incompatible – forms of governance: one rooted in constitutional principles that uphold the rule of law, due process, and myriad cherished guarantees.

The other, a despotic system that displaces those liberties with brute force.  This system is one in which the supposedly democratically elected “leader” gets reduced to a mere figurehead, clearly lacking his mental marbles, who is in turn absorbed into a centralized bureaucratic apparatus managed by shadowy overseers working to subvert the will of the American people from behind the scenes with their own, self-interested goals.

The guilty verdict in President Trump’s case marked a significant turning point, a proverbial Rubicon moment, in American judicial history. Convicting a past and future president, who remains one of the most popular and respected figures in American politics, is unprecedented in our nation’s history. Such a brazen assault on the Constitution would have been inconceivable to the Founding Fathers.

Judge Merchan’s disregard for constitutional norms and established legal precedents, including recent Supreme Court decisions requiring unanimous jury verdicts, highlights his departure from the judicial oath to uphold the Constitution’s core principles.

His actions, such as imposing a gag order on President Trump with shameless abandon, that inhibited his ability to address conflicts of interest involving the judge, not only violated the First Amendment – and otherwise established judicially disqualifiable financial ties between he judge and case – but also ignored well-established legal standards.

This includes recent Supreme Court precedent that, for example, imposes a constitutional obligation of unanimous jury verdicts, which traces its roots all the way back to English common law, arising in the fourteenth century.

Of course, being an avowed enemy of Anglo-American jurisprudence, Merchan saw fit to abandon that venerable tradition, and instead adopt a legal predisposition readily found in communist and socialist societies like Cuba, Venezuela, or the former Soviet Union, where the prosecution of political enemies is commonplace.

In doing so, Merchan has sided decisively with the enemies of the American system, who, rather than heeding Lincoln’s eternal proverb, that right makes might, has instead acted with a Machiavellian vengeance that punishes its enemies without recourse to due process or the presumption of innocence.

If Merchan – and by extension, Alvin Bragg and Joe Biden – have their way, our civilization is at risk of plunging into a dark age of barbarism and tribalistic bloodlust, which will mark the end of America.

Here are just a few examples of constitutional provisions that Judge Merchan flouted by convicting President Trump, grounds for which his verdict is demonstrably unconstitutional and illegitimate:

First Amendment: As Harvard Law Professor Emeritus, Alan Dershowitz, spelled out in a Wall Street Journal column this weekend (and as I have written at great length previously), Judge Merchan’s gag order is a flagrant breach of the First Amendment.

In his article, Professor Dershowitz explained the issues surrounding the gag order, which rests on highly tenuous authority.  The first, being the scope of the order – which is unprecedented both in breadth and content.  First, rarely ever has a gag order been so egregiously misapplied – and lasted so long, all the way through the verdict and still ongoing!

The fact that there were two iterations of this gag order, both of which were designed to quash President Trump’s political speech is bad enough.  The defendant has every right under the sun to critique the judge and jury of perceived bias – especially here, with a judge that, on numerous fronts, should have recused himself for contributing directly to the Biden-Harris campaign; for having a wife who was once employed by Letitia James, Bragg’s Attorney General; and for having a daughter who is president of a consulting firm that has made millions from representing political clients, including the Biden-Harris campaign, creating a direct pecuniary stake in the outcome of this case.

It is not hard to see how an immediate family member of Judge Merchan – namely, his daughter – might receive a financial windfall from a guilty verdict.

Beyond that, Merchan’s use of the gag order as a sword against the defendant, rather than as a shield to protect the defendant from outside threats, which is the ordinary use of such orders, is equally without precedent and violative of well-established law.  As I have previously written:

Only in the rarest of cases has the Supreme Court upheld prior restraints on speech.  In the few cases where the Court has upheld gag orders, a form of prior restraint, the order was necessary to achieve a compelling state interest.  In other words, the Supreme Court has only permitted gag orders that satisfied the extremely high burden of strict scrutiny analysis.  Where gag orders are at issue, strict scrutiny compels courts to limit the scope of the order to an articulable set of facts – the facts encompassing the order must be extremely particularized and limited in scope, and only considered as a final option if and when all other alternatives to help ensure a fair trial have been totally exhausted.

Thus, gag orders are only ever to be used as a last resort option, and only in the most exceptional cases when the right to a fair trial would otherwise be severely jeopardized without it.  In the rare cases where a gag order would be appropriate, again the court must take great pains to ensure that it is structured in such a way as to be particularized to a highly limited set of facts that have a direct bearing on the integrity of the proceeding – and go no further.  The gag order should always be temporary, with a definitive start time and expiration date, terminating whenever the danger that resulted in its issuance in the first place subsides, or immediately once alternative, less constraining methods that would ensure a fair proceeding become available, whichever comes first.

This past weekend Professor Dershowitz corroborated in his own piece what I had written months ago:

It is important to remember that a gag order is a prior restraint on speech. The First Amendment prohibits prior restraints except in the most extraordinary circumstances, in which important countervailing interests are at stake. In New York Times Co. v. U.S. (1971), the Pentagon Papers case, the Supreme Court rejected such claims by the government and allowed the media to publish sensitive classified information. Prior restraints may also be permissible to protect the integrity of continuing jury trials, though the constraints must be narrowly tailored to actual dangers to fair-trial rights. Here any such dangers, if they ever existed, ended when the trial concluded. The judge has almost certainly already decided on the sentence he would impose, and even if he hasn’t, allowing the public (and him) to hear what Mr. Trump has to say wouldn’t endanger the sentencing process.

In sum, President Trump has every right, as a criminal defendant, to criticize the proceedings.  That is routine.  Even if the trial were done properly and in accordance with law – which, of course, it emphatically was not – the defendant still would retain that fundamental right.

One does not simply lose one’s all-important right to speak, particularly on matters essential to the defendant’s liberty interests – such as the prejudiced composition of the jury, or political biases of the venue or judge – when the stakes are highest; indeed, to the contrary, that is when the need to preserve the right to speak freely is greatest.

Nor does the judge get to rewrite centuries of well-settled case law because he has a personal gripe against the defendant.  Nor when he has a financial or professional stake in the defendant’s guilty verdict, and/or a vendetta with Anglo-American jurisprudence overall, which, having absorbed the tenets of critical race theory, he likely considers an oppressive creation of evil white men.

Just one of these are more than enough grounds for a recusal (and at least one is grounds for Judge Merchan’s disbarment).  Never mind the fact that the defendant was and will be again the President of the United States, whose rights deserve extra care – and any deprivation thereof, extra scrutiny – given the monumental political stakes that are implicated by the trial and judgment, whose shockwaves are bound to reverberate across American society.

Fifth and Sixth Amendments:  Arguably even more pernicious than Judge Merchan’s trampling over the First Amendment is his running roughshod over fundamental rights guaranteed in the Fifth and Sixth Amendment – namely, the requirement that due process be upheld, for one; and that every count be proven on their elements beyond a reasonable doubt, for two.

The latter bespeaks the constitutional requirement of unanimity, a requirement perpetuated over centuries of practice, and reaffirmed in two very recent Supreme Court decisions: Ramos v. Louisiana (2020) and again, just last week, in Erlinger v. United States (2024).

The unanimity requirement is most directly affirmed in Ramos, where the High Court stipulated in an 8-1 ruling the Sixth Amendment’s requirement that “the government must prove to a jury every one of its charges beyond a reasonable doubt.”

Perhaps anticipating a direct appeal to the Supreme Court from President Trump’s lawyers based on the Ramos precedent, the Court also elaborated the principle of unanimity in Erlinger.  There, the Court said that “‘any fact’ that ‘increase[s] the prescribed range of penalties to which a criminal defendant is exposed’ must be resolved by a unanimous jury beyond a reasonable doubt.”

Reading these two decisions together, the Court first reaffirmed the condition that felonious guilty verdicts be unanimous.  Through the Fourteenth Amendment, that constitutional right applies equally in content to criminal verdicts in state court as much as it does to federal courts.

Moreover, in Erlinger, the Supreme Court described that one of the components of unanimity is that the government must prove every element of every crime alleged beyond a reasonable doubt.  In other words, the now infamous 4-4-4, mix-and-match jury verdict that Judge Merchan allowed in his instructions is a flagrant violation of both Erlinger and Ramos.

This is because the government must show, in a case alleging multiple crimes, that the defendant is guilty of either all crimes, or, at the bare minimum, of one of the three alleged crimes.  That crime must have each of its elements spelled out, at which point the government has the burden of showing that each element met the burden of proof.

Here, that did not occur.  Nobody other than the jury knows which of the three crimes the President was indicted on.  That is plainly improper and blatantly unconstitutional.

For all we know, four of the jurors may have found President Trump guilty on crime A, but not crimes B and C, while another four might have found the President guilty of crime B, and not A and C, and so on.

This is why the guilty verdict has been colloquially dubbed a “mix-and-match” or “smorgasbord” – the judge violated the obligation of unanimity by allowing jurors to pick any charge they individually felt met the burden of proof, without having to be in consensus over which one.

Those instructions clearly infringe the holdings from Erlinger and Ramos.  In turn, they deny President Trump of due process and other fundamental rights.  This is because the requirement for unanimity is contained in the Sixth Amendment, which has been incorporated to the states via the Due Process Clause of the Fourteenth Amendment.

In other ways, President Trump’s right to due process has been abridged – he was unfairly prejudiced all throughout the trial through the salacious and defamatory testimony of Stormy Daniels and Michael Cohen, as just one instance.  But the most direct violation might be the Judge’s disregard for unanimity, a requirement older than the Constitution itself.

This egregious violation raises other doubts about whether the burden of proof was met at all for any charge alleged (jury deliberations were notably kept under lock and key) – in turn, raising other, maybe even stronger, grounds for due process challenges.

Other Constitutional Violations: In addition to blatant and unprecedented violations of the First, Fifth, and Sixth Amendments, Merchan violated a litany of other constitutional provisions and rules of evidence and professional conduct.  He flouted rules governing venue and jurisdiction.

For starters, it is extremely dubious that an alleged federal election law violation, which was asserted in the judge’s instructions, could be brought in state court.  In particular, the purported crime in question – a FECA violation, is governed exclusively by the Federal Election Commission.

The FEC is a civil agency of the federal government that already cleared the federal election law violations asserted by Bragg and Merchan.  Under normal circumstances, this charge should have been preempted by the FEC.  At the bare minimum, as a civil agency, the FEC lacks prosecutorial authority, and cannot prosecute criminal matters without bringing in the Department of Justice.

So, the basis upon which a state court can “prosecute” a federal election law violation that is routinely treated as a civil, and not criminal, matter is beyond anyone’s comprehension – an important nuance in the law that clearly eluded both judge and jury here.  Again, the fact that this alleged violation previously received an FEC clearance raises very strong grounds upon which to believe the underlying matter was not criminal at all, and certainly not felonious.

There are of course more violations, too numerous to count.  The Rules of Evidence, particularly governing inadmissible hearsay and the prohibition of prior bad acts that have no bearing whatsoever on the case at hand, were ignored with shameless abandon.

The Judge acted inappropriately by excluding certain expert witnesses, such as the FEC Commissioner that was supposed to flesh out the legal analysis I briefly articulated above.

Merchan also admonished the one defense witness, Robert Costello, with a generally favorable view to President Trump and his case.  Merchan acted so plainly outside the bounds of proper judicial conduct, even for an acting state court judge, which is what he is, that he should have been dismissed from the case – and indeed disbarred.

As a judge, it is wholly improper to have a financial interest in the outcome of any decision, let alone continue presiding over it.  This not only denies the defendant his fundamental right to a fair trial, but maybe even more devastatingly, it has lasting detrimental effects on the trust and integrity of the criminal justice system overall.

Now, tens of millions of Americans have a jaded view of the prospect of free and impartial justice in this country.  The damage done to the integrity of the rule of law may be irreparable; it could well take generations to rehabilitate some semblance of the esteem American lawcourts once universally enjoyed in the eyes of the public – the real tragedy is the likelier prospect that it may never happen.

Over two hundred years of Anglo-American law, customs, and norms have been sabotaged in Judge Merchan’s courtroom.  Even if President Trump is exonerated, what has been allowed to take place already is, without exaggeration, the greatest miscarriage of justice ever committed in American history.

The Left prides itself all the time for preserving democratic institutions; but the damage that Merchan, Bragg, and ultimately Joe Biden have wrought to our democratic institutions is unforgivable – because, unlike past injustices, this one may be permanent.

If America dies, these diabolical men will have delivered the fatal blow.  Hundreds of years of our inheritance has been squandered in a matter of weeks by vengeful evildoers who are operating to destroy our system, root and branch.

This cannot be tolerated; this will not be tolerated.  Americans have every right in the world to be outraged by what is occurring.  Should he be reelected, President Trump will have a mighty task on his hands to restore integrity and order in our judiciary, which is of paramount importance if we are going to persist in the years to come as a free nation.

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