GREGG JARRETT: NY judge desperate to brand Trump 'convicted felon' before inauguration
New York Judge Juan Merchan’s dogmatic refusal on Friday to dismiss the misbegotten case against President-elect Donald Trump and, instead, proceed to sentencing on Jan. 10 is yet another middle finger extended to the law. And to Trump.
At the same time, Merchan unwittingly concedes the folly of the entire prosecution by notifying the defendant that neither the court nor District Attorney Alvin Bragg will seek any meaningful punishment. Trump, the judge disingenuously advises, would receive an "unconditional discharge" with no incarceration, fine, or probation following the guilty verdicts by a Manhattan jury last May.
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Never mind that state law does not support a jail sentence under these circumstances. Forget that the district attorney deliberately contorted statutes and mangled evidence to pursue a meritless prosecution that was motivated purely by political vengeance. And ignore the fact that there is little chance that the biased jury’s guilty verdict, compounded by Merchan’s chronic reversible errors, will withstand judicial scrutiny on appeal. Eventually.
It seems obvious that Merchan is desperate to stain Trump with the formal stricture of "convicted felon." To do it, he must sentence the incoming president. A jury’s verdict alone is insufficient under the law. Hence, the offer of what amounts to a non-sentence if only Trump will, at the very least, appear virtually during a hearing 10 days before he is sworn in.
It is another charade meant to bookend —and cover-up— a sham trial. Show up to be verbally tarred and feathered, but no stocks or pillory will be deployed.
In some sense, it may be tempting to accept Merchan’s contingent surrender. Why? Under law, Trump is foreclosed from challenging the myriad of mistakes the judge made at trial, as well as the prosecution’s specious legal theory, until sentencing occurs. Only then is he officially "convicted." A successful appeal erases the conviction, albeit belatedly.
And there’s the rub.
Your average defendant would accept the Faustian bargain that guarantees no jail time and starts the clock immediately on the appellate process. But Trump is different. He is an inveterate fighter who refuses to capitulate, even when his opponents are facing reproach. It’s one of the many reasons why voters rewarded him with a second term in office. He does not give up or give in. Nor should he.
Trump is determined to clear his name. So, you can expect that his legal team will challenge Merchan’s ruling on both the dismissal and sentencing. There are various legal options available, such as filing for an emergency "stay" from the appellate courts that, if granted, may push any further proceedings beyond inauguration on Jan. 20.
Since it is well established that presidents are immune from any criminal process while in office —a principle that even Merchan accepts— a court-ordered pause would effectively delay sentencing until 2029. Of course, that assumes the case still has a pulse four years from now.
Trump has a credible argument that the verdicts against him should be vacated now. As president-elect, his lawyers contend that "immediate dismissal is mandated by the federal Constitution, the Presidential Transition Act of 1963, and the interest of justice." Sentencing would disrupt the orderly transfer of executive power.
In essence, a state has no right or power to transgress federal laws passed by Congress, including the Transition Act. Interference by a local prosecutor and/or judge constitutes a violation of the Supremacy Clause in the Constitution.
But there are other compelling reasons to end this case sooner, rather than later.
In an earlier ruling, Merchan readily acknowledged his authority to set aside the verdicts if mistakes were made at trial which would merit reversal. Yet, he stubbornly refuses to recognize the plethora of errors that demand dismissal.
Chief among them is that prosecutors relied on tainted evidence prohibited in the presidential immunity standard enunciated by the Supreme Court on July 1. Testimony from White House officials and numerous presidential records should never have been introduced. Merchan disregards all this by insisting that such evidence was trifling, even though prosecutors emphasized it during closing arguments to the jury.
He also turned a blind eye to Bragg’s convoluted and incoherent legal theory that it must somehow be a crime to conceal a perfectly legal non-disclosure agreement. It is not. He then allowed the district attorney to shred the law by resurrecting expired business record misdemeanors and transmuting them into phantom election felonies that were falsely portrayed as unduly influencing the 2016 presidential contest.
It was a pretty neat trick inasmuch as Trump’s transactions were recorded and reimbursed after the election. Moreover, Bragg, as a local prosecutor, had no jurisdiction to enforce federal campaign laws. The payments to former adult film star Stormy Daniels did not even qualify as contributions under any statute or regulation.
As I have noted before, a competent or objective judge would have long ago tossed the Trump indictment in the garbage where it belonged. On its face, it was patently deficient, if not ludicrous, and a transparently politicized prosecution.
But Bragg’s disgraceful legerdemain did not bother Merchan in the least. Just the opposite. His honor merrily went along with the hocus-pocus. At trial, he shed his black robe to join the jurisprudential circus as co-prosecutor.
When the preordained verdicts were announced, no one knew exactly what Trump was convicted of. Theoretically, bookkeeping errors were allegedly committed to further another crime in an unlawful attempt to influence the election.
But what crime? No one can say. Was it federal campaign law violations? Taxation laws? False business records? Select from the aforementioned menu of imaginary possibilities. Trump doesn’t know because prosecutors never said. And neither did the jurors.
In an appalling instruction to the panel, Merchan declared that they did not have to identify which crimes were supposedly perpetrated and need not agree unanimously. He abandoned with impunity the bedrock principle of unanimity in criminal convictions which the Supreme Court has reinforced repeatedly.
Merchan’s courtroom devolved into a cesspool of incomprehensible rulings by a conflicted and hostile judge that deprived Trump of a fair trial. Merchan and prosecutors worked in concert to engineer the guilty verdicts. Political bias smothered the defendant’s due process rights. It was a harebrained case driven by a district attorney who enthusiastically embraced the Democrats’ corrupt lawfare campaign against their Republican opponent.
None of it fooled American voters. Indeed, it appears to have backfired spectacularly. Many deeply resented how Trump’s adversaries disfigured the law to bring a series of criminal indictments designed to destroy his chances of returning to the White House. Outrage was voiced at the ballot box on Nov. 5. Decisively.
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Despite their best efforts to sabotage the outcome of the election, the unscrupulous duo of Merchan and Bragg can do nothing now to stop Trump. Even if his anticipated bid to halt the sentencing next Friday fails, the newly elected president still benefits. He can commence appealing the shameless perversion of the law that was waged against him and the miscarriage of justice that ensued.
It wasn’t a fair trial. It was a farce.
In the meantime, it is incumbent on the incoming Department of Justice to open a comprehensive investigation into the lawfare campaign that Special Counsel Jack Smith, Fulton County District Attorney Fani Willis, and Manhattan District Attorney Alvin Bragg brought almost simultaneously and only after Trump announced his bid for election.
Coincidence? Hardly. There is reason to believe that there was coordination among them with President Joe Biden’s White House or with Attorney General Merrick Garland’s DOJ. Maybe both. If laws were broken, prosecutors should be exposed and held accountable for weaponizing the justice system.
Democrats have spent the last four years lecturing us that no one is above the law. Inconveniently now, that same standard applies to them.