After Supreme Court Decisions, Judge Merchan Must Throw Out Trump’s Convictions

Prosecutors asked the jury to find Trump guilty based on his official acts. But SCOTUS has ruled that presidents are immune from criminal prosecution based on their official acts.

Author’s note: This is the first of two columns contending, based on recent decisions by the United States Supreme Court, that New York State judge Juan Merchan should set aside the guilty verdicts against former president Donald Trump, which were returned by the jury in the criminal trial that ended in early June. The trial resulted from charges brought by Manhattan District Attorney Alvin Bragg.

B efore the familiar flurry of rulings that ended the Supreme Court’s term last week, there was already a geyser of grounds for throwing out the travesty of a trial that resulted in former president Donald Trump’s felony convictions — 34 of them because the case was pled abusively, as well as vindictively, by Manhattan’s elected progressive Democratic district attorney Alvin Bragg.

I wouldn’t hold my breath waiting for corrective action on those reversible errors to be taken by Juan Merchan, the deeply conflicted Democratic judge who, because he lacked the ethical compass to recuse himself, should have been disqualified over his contributions to Joe Biden’s 2020 campaign against Trump as well as other progressive causes (in violation of state ethics law, as Hugh Hewitt demonstrates). And that would be true even if Merchan’s daughter were not a progressive activist who performed lucrative campaign work for Biden, Kamala Harris, Adam Schiff, and other Democrats who define themselves by their anti-Trump animus.

Given that he presided over the trial and willfully abetted Bragg’s blatant violations of Trump’s due-process and substantive legal rights, it would be naïve to expect that Merchan would reverse himself on the existing record. Nevertheless, the Supreme Court has now given him an off-ramp. Rather than stand behind the embarrassing trial, the judge can now plausibly rule that new decisions from on high, issued post-trial, require vacating the verdicts of guilty, regardless of how one assesses the record compiled before these new rulings.

In this column, the first of two on this subject, I will address why Merchan must vacate the guilty verdicts because of the Court’s decision in Trump v. United States, which holds that presidents are immune from criminal prosecution based on their official acts. In the second column, I will explain why the verdicts should be vacated in light of the Court’s decision in Erlinger v. United States, which reaffirms the due-process requirement that juries must make unanimous findings beyond a reasonable doubt on all facts that have the effect of increasing a defendant’s potential sentence.

One other introductory note. It has become popular in Democratic circles to refer to Trump as a “convicted felon.” But no judgment of conviction is formally entered on the court record until after the judge imposes a sentence. Thus, I speak of vacating (or setting aside) the jury’s guilty verdicts, not of reversing convictions. Technically, Trump is not a convicted felon — at least, not yet — and the fatally flawed Manhattan prosecution should not be the occasion of his becoming one.

Indeed, Merchan should enter a judgment of acquittal, such that double-jeopardy principles would bar a retrial. That’s because the admissible evidence presented by the state was insufficient to convict. Bragg simply did not prove the 34 charges that Trump falsified his business records with fraudulent intent to conceal a second crime, particularly once the improperly admitted testimony is stripped away, e.g.: Stormy Daniels’s outrageously prejudicial testimony about an alleged sexual encounter; the even more improper testimony regarding Michael Cohen’s guilty pleas to federal campaign offenses and David Pecker’s non-prosecution agreement (in conjunction with Merchan’s suppression of Trump’s constitutional right to present a defense by calling an expert witness on federal campaign law even though he allowed the unqualified Cohen and Pecker to testify as if they were experts on the subject); and what I am about to explain was highly doubtful evidence of official presidential acts as to which Trump was immune from prosecution — specifically, Cohen’s testimony about Trump’s alleged assurance that he was having Attorney General Jeff Sessions scuttle a campaign-finance investigation implicating Trump, Cohen, and Pecker.

How Official Presidential Acts Factored into Bragg’s Case

When one thinks about the state’s case against Trump — both the narrative presented to the trial jury and the indictment returned by the grand jury, which are very different — it is not obvious that immunity concerns should have any bearing on the matter. First, prosecutors deceptively presented the case to the trial jury as if Trump had been charged with conspiracy to steal the 2016 election. This partisan fever dream was based on actions taken prior to the election. Obviously, actions taken before Trump took office could not be official acts of the presidency and, therefore, are not immune from prosecution. Second, the actual charge repeated 34 times in the grand jury’s indictment — falsification of business records — was based on 2017 conduct that, though coterminous with Trump’s first year in office, appears exclusively to be private and non-official, and thus not grist for immunity claims. To summarize, Trump is alleged to have fraudulently couched monthly installment payments to his lawyer, Cohen, as legal fees pursuant to a retainer agreement. This was done, prosecutors claim, to obscure that Trump was actually reimbursing the $130,000 Cohen had laid out on the eve of the 2016 election to seal a nondisclosure agreement (NDA) with Daniels, a porn star who claimed to have had a tryst with Trump in 2006.

Nevertheless, as the case played out, prosecutors patently asked the jury to find Trump guilty based on evidence of his official acts — specifically, the then-president’s alleged communications with his then–attorney general, Jeff Sessions, as related to the jury by Cohen, Bragg’s star witness.

It speaks volumes about the weakness of the state’s case that Cohen’s testimony about Sessions was fleeting and incredible. In a normal criminal case, prosecutors would lavish time and attention on such an astounding and damning allegation. And mind you, I do not describe the testimony as incredible solely because Cohen, a convicted perjurer and fraudster, was not a credible witness; the testimony does not make sense, which probably explains why Susan Hoffinger, the Bragg prosecutor who elicited it, spent so little time developing it.

The Matryoshka FECA Conspiracy

Let’s cover some more necessary background. Bragg claimed that Trump’s alleged falsification of business records, normally a misdemeanor in New York law, became felonious because it was done with fraudulent intent to conceal a second crime. That second crime, Bragg claimed, was another misdemeanor: a New York election-law conspiracy to influence an election by criminal activity. What criminal activity? (Yes, in Bragg’s Matryoshka production, there is always another crime, within which lurks still another crime — none of which, in the Bragg Constitution, needs to be written into the indictment.) The main criminal activity (or “unlawful means”) cited by Bragg was Trump’s supposed scheme to violate the Federal Election Campaign Act (FECA).

Bragg theorized that the following three transactions were in-kind campaign contributions, required by criminally (and civilly) enforceable FECA provisions to be reported to the Federal Election Commission (FEC): (1) Cohen’s $130,000 NDA payment to Daniels, on which all 34 business-records charges were based; (2) a similar NDA payment of $150,000 that Trump crony David Pecker, then in control of the National Enquirer, made to Karen McDougal, a former Playboy model who also claims to have had an affair with Trump about a decade before he first ran for president; and (3) Pecker’s more modest $30,000 NDA payment to Dino Sajudin, a Trump Tower doorman who claimed — falsely, it appears — that Trump fathered a child with a woman who worked as a concierge there.

We’ve covered a plethora of Bragg/Merchan malfeasance in connection with the FECA allegations. To repeat some of the greatest hits: Bragg has no authority to enforce FECA; the two federal entities given exclusive enforcement authority (the Justice Department and the FEC) took no action against Trump after thorough investigations; as a matter of law, NDA payments, which are legal (though Bragg’s prosecutors repeatedly told the jury that Trump’s were illegal), are not campaign contributions under FECA; and the jury was denied defense testimony on this point because Merchan would not allow its elicitation from Bradley Smith, the former FEC commissioner Trump offered for that purpose. But as I’ve previously explained, the simplest reason why Merchan should have acquitted Trump from the bench when the state rested its case (i.e., without submitting the case to the jury) is the basic failure of Bragg’s prosecutors to prove beyond a reasonable doubt that Trump conspired with Cohen and Pecker to violate FECA, and therefore to prove that he fraudulently intended to conceal a second crime.

It’s not enough to say the evidence was insufficient. It’s not even a close call.

The NDAs were paid for — and, according to Bragg, the election was thereby stolen — in 2016. The monthly payments to Cohen (i.e., the basis for the business-records offenses actually charged in the indictment) occurred from February through December 2017. Even by Bragg’s lights, the charged crimes were thus completed at the end of 2017. But there is no evidence that FECA even entered into any alleged conspirator’s mind, much less that the conspirators discussed FECA and agreed to flout it, until 2018. According to the state’s evidence, concerns about federal election law did not arise until January 2018, when the media began reporting about the NDAs; this is said to have induced the FEC to contact Pecker and Cohen.

Needless to say, it is not possible to have fraudulent intent while making 2017 business-record entries to conceal a supposed crime that no one conceived of until 2018. It is not possible to conspire to steal an election in 2016 (the crime Bragg touted but neither charged nor proved) by flouting FECA law that there’s no evidence anyone thought of until over a year after the election.

Logically, this would be true even if we were talking about an obvious crime. FECA crimes, to the contrary, are the antithesis of obvious. They are abstruse federal regulatory offenses fraught with First Amendment complications. That is precisely why (a) Congress created the FEC to specialize in FECA oversight, (b) Congress vested jurisdiction to enforce this complex federal legal corpus exclusively in the FEC and DOJ, and (c) state prosecutors have no business pursuing FECA cases (to say nothing of making up their own version of FECA, as Bragg has done).

Because Congress did not want FECA to become a trap for the unwary, it required prosecutors to prove an accused defendant acted willfully. Willfulness is the highest mens rea element in criminal law, calling for proof beyond a reasonable doubt that an accused knew that the law imposed a legal duty yet intentionally disregarded that duty. Bragg had no such evidence regarding Trump’s state of mind.

With Merchan’s help, though, the DA tried to fill this gaping hole in his case by having Cohen and Pecker testify that worries about possible FECA liability caused Cohen to plead guilty in federal court, and caused Pecker to cut non-prosecution and civil-settlement deals with federal prosecutors and the FEC. But as even Merchan acknowledged in half-hearted jury instructions — woodenly delivered amid the repeated improper testimony — Cohen’s and Pecker’s agreements with the federal government, and their state of mind in entering those agreements, were not admissible evidence against Trump. As it happens, Cohen and Pecker were wrong about FECA (a fact that Merchan barred Smith from explaining to the jury). But even if they had arguably been right, Trump was the candidate, not a mere supporter, and therefore was subject to FECA rules saliently different from those applicable to Cohen and Pecker — thus rendering their FECA testimony even more irrelevant and improper.

The Official Act Evidence: President Trump’s Consultation with Attorney General Sessions

Significantly, Bragg’s prosecutors tried one additional thing to have some thin reed on which to rest their FECA allegations against Trump. Hoffinger elicited from Cohen that then–President Trump assured him that the FECA “matter is going to be taken care of and the person, of course, who is going to be able to do it is [then–Attorney General] Jeff Sessions.” In testimony that lasted less than 30 seconds, Cohen related that he had imparted this information to Pecker in order to allay his fears after Pecker was contacted by the FEC in early 2018. (See transcript, pp. 3,576–77.)

To describe this testimony as fishy would be an insult to fish. By that late point in Cohen’s direct testimony, Hoffinger had drawn out the details of several conversations Cohen recalled having with Trump. Yet, she never got around to asking him about the circumstances — the words exchanged — when the president of the United States supposedly explained to Cohen that he was having the attorney general of the United States corruptly kill a FECA probe in which the president was implicated. Instead, the state elicited this critical Cohen-Trump conversation as an afterthought: Cohen recalled telling Pecker that Sessions would take care of “the matter”; then, Hoffinger asked why Cohen had said that, and Cohen curtly replied that Trump had told him so. No follow-up questions — Hoffinger just moved on to a new subject.

Perhaps she preferred not to linger long because the story makes no sense. Sessions controlled the Justice Department. At the time in question (early 2018), Pecker and Cohen were being contacted, not by the Justice Department, but by the FEC. In administrative state jargon, the FEC is an “independent” regulatory body. It is not controlled by the attorney general, or even by the president. (The president just nominates its members, who must be confirmed by the Senate.) While the DOJ handles criminal enforcement of FECA, the FEC is in charge of civil enforcement. Putting aside the fact that Sessions is a straight arrow (who famously recused himself from the Trump-Russia collusion probe to avoid even the appearance of doing Trump’s bidding), an attorney general has no power to kill an FEC enforcement action — as Brad Smith could have explained to the jury had Merchan permitted the defense to call him.

For present purposes, my main point is not that Cohen’s testimony about Sessions is not believable; nor is it that the testimony is too weak to establish Trump’s state of mind with respect to a FECA offense (quite apart from the dearth of evidence that FECA concerns had anything to do with Trump’s 2017 record-keeping). My point is that Merchan permitted the state to prove a criminal offense against the former president based on his performance of his official duties.

This was testimony about the president’s consultations with the Justice Department about the enforcement of federal election law. Ergo, we are not talking about the outer margins of presidential power. With respect to this exact subject — namely, a president’s discussions with Justice Department officials about the exercise of the executive branch’s prosecutorial discretion — the Supreme Court, in its just-issued Trump ruling, instructed that this is a core constitutional power. It is part of the “conclusive and preclusive” ambit of executive authority as to which a president has absolute immunity. And when presidents have such immunity for official acts, Chief Justice John Roberts’s majority opinion elaborated, such acts may not be alleged as crimes per se, nor may they be used by prosecutors as evidence of crimes.

Hence, to induce the jury to find Trump guilty, Bragg used evidence of official action for which Trump had absolute immunity. It is virtually the only evidence in the case from which it could be argued — however weakly — that Trump willfully schemed to flout FECA. Such guilty verdicts cannot stand. Merchan is obligated to vacate them.

In the next column, I will address the reversible errors that stem from Merchan’s astonishing decision not to require a unanimous jury verdict regarding the supposed second crime that was key to Trump’s conviction and the enhancement of his potential sentence.