The drawn-out handwringing by the judge over what should have been a no-brainer is telling.
As James reports, Judge Juan Merchan postponed Donald Trump’s sentencing in the Manhattan criminal case. It was the right call, but Merchan’s weeks of handwringing over what should have been a no-brainer are telling. I contended in an op-ed posted on Fox News Opinion last night that the judge, assuming he is not merely a partisan hack, has not grasped the legal issue. With more time to ponder the matter, I suspect he does understand the issue – which is immunity – but is incapable of admitting his contributory role in its becoming a huge problem.
Judge Merchan’s musings in the four-page letter docketed on Friday indicate that he believes, or at least is rationalizing, that the sentencing should be postponed in an abundance of caution in light of the imminence of the election — to avoid the appearance that the prosecution’s aim is to improperly influence the 2024 election (an aim stressed by Trump and corroborated by two years of Democratic-orchestrated lawfare). Au contraire, protests this self-described “fair, impartial and apolitical” jurist. (In five decades in the law, I have been privileged to know more than my fair share of fair, impartial, and apolitical jurists; I’ve yet met one, though, who needed to tell people that he or she was fair, impartial, and apolitical.)
In point of fact, the sentence had to be postponed because there is a significant immunity issue. Again, I’m puzzled as to whether Merchan — who has heretofore struck me as underhanded but not a dolt — just doesn’t get that, or (more likely) is obfuscating because he realizes his own carelessness, in facilitating District Attorney Alvin Bragg’s recklessness, is responsible for the fact that there is a significant immunity issue.
To repeat what I’ve argued here before, Bragg did not need to introduce the evidence of Trump’s official acts as president. He could have proved his case, such as it was, through the testimony of Trump organization witnesses (who generated the paperwork that became the business records prosecutors allege were falsified) and Michael Cohen, Trump’s private lawyer who was the central actor in the non-disclosure agreements (NDAs) in which porn star Stormy Daniels (among others) were paid to remain silent about trysts they claim to have had with Trump a decade before he ran for president.
Yet, Bragg’s prosecutors used state legal process to compel the testimony of two Trump White House staffers about Trump’s practices as president, and gratuitously elicited from Cohen the (implausible) testimony that the then-president had claimed the then-attorney general would corruptly bury a Federal Election Commission probe of the NDAs.
Mind you, the Supreme Court heard oral argument in the Trump immunity case on April 25, 2024. That was many days before Merchan allowed most of the objectionable evidence, at Bragg’s insistence and over Trump’s strenuous objections. (In fact, oral argument occurred while the state’s first witness, then-AMI exec David Pecker, was still testifying). Even before oral argument, it was manifest that the Court was taking Trump’s immunity claim very seriously; but it became unmistakable during oral argument that a number of the justices were sympathetic to Trump’s immunity claim – and alarmed by the prospect that political adversaries of a former president could attempt to prosecute official presidential acts as crimes per se, or as evidence of crimes.
Yet, in their progressive Democratic Manhattan cocoon, Merchan and Bragg laughed off Trump’s immunity claims as frivolous. Merchan was so dismissive that he gratuitously violated Trump’s constitutional rights by preventing him from attending the High Court’s oral argument – even though (a) any competent judge knows an accused is entitled to be present at all important proceedings attendant to a criminal prosecution (the immunity argument was a key part of the appeal of a potentially make-or-break ruling by the trial court in the federal election-interference case; a prudent judge would have encouraged Trump to attend, particularly given the unprecedented and historic of these cases); and (b) Merchan regularly adjourned Trump’s trial over matters that were comparatively trivial.
Meantime, Bragg’s prosecutors scoffed at Trump’s immunity claims, insisting that there was no presidential immunity from criminal prosecution, certainly not for former presidents, and thus that there could be no derivative evidentiary rule barring the use of official presidential acts to prove crimes substantially based on non-official private conduct. Merchan not only swallowed this whole, despite all the signals to the contrary; his discussion of immunity indicated that he didn’t understand the issue. (See, e.g., here, in which I detail Merchan’s confounding immunity with a claim of confidentiality privilege – a very different thing.)
This was the context in which Bragg permitted the evidence of Trump’s official acts. Doing so was irresponsible. Many were surprised by the scope of the Supreme Court’s ruling that presidents have immunity; but the Court’s conclusion that even former presidents have some measure of immunity was not surprising at all to anyone paying attention. It’s not about agreeing or disagreeing; it’s about knowing which way the wind is blowing. If they could have been objective, Merchan and Bragg would have realized they were playing with fire by introducing evidence of Trump’s official acts – especially when Bragg didn’t need that evidence. (I am not saying I believe Bragg proved his case beyond a reasonable doubt; I am saying he could have proved what he relevantly proved without the official-act testimony.)
I suppose where I come out is that Merchan is not a numbskull; he is just incapable of admitting error – at least error on this scale. There shouldn’t be an immunity issue in this case. There is one because Merchan ignored the neon-blinking “don’t do this” signs and injected one into the case – egged on by Bragg’s office.
The judge is not so obtuse that he can’t see what he has done. No doubt, he is rationalizing that the objectionable evidence was harmless precisely because Bragg didn’t need it. But he also knows that (a) Trump timely and forcefully objected, (b) Merchan foolishly joined Bragg’s prosecutors in their eye-rolling rebuff of Trump’s immunity claims, and then (c) Bragg’s team told the jury in summation that the objectionable evidence was “damaging” and “utterly devastating.” How do you slough that off as harmless error?
For these reasons, I suspect Merchan is avoiding acknowledgment that the immunity issue requires postponement of the sentence. It is not just that Trump has a colorable argument that the guilty verdicts must be vacated; immunity issues are immediately appealable – i.e., nothing else in the case, including sentencing, should happen until the immunity issue has been tested in the state appellate courts, and perhaps the Supreme Court. Had Merchan grappled seriously with immunity in the context of the defense motion to postpone sentencing, he’d have been forced to admit it’s a serious problem – one for which he has himself to blame.
So, instead, his letter’s revisionist history frames the postponement as a noble effort to avoid interfering with the presidential election that is now just eight weeks away. I put it this way in the Fox News op-ed:
In his letter, Merchan incoherently claims that there would be no need to delay the sentencing now if his original sentencing date of July 11 had held. But that date couldn’t have held. The Supreme Court’s immunity decision was issued on July 1. It was this immunity ruling, not the 2024 election, that necessitated the delay.
Merchan also notes that even Bragg did not object to Trump’s postponement motion (in fact, he construes Bragg as having joined Trump’s motion). But the judge seems impervious to the fact that the DA took this position because Trump would be entitled to appeal if Merchan rules against him on immunity. Delay was unavoidable.
Finally, Merchan previously said he’d issue his immunity ruling on Sept. 16. Having now postponed the sentence to Nov. 26, however, Merchan somehow decided to postpone the immunity ruling until Nov. 12. That makes no sense.
To elaborate, the quicker Merchan rules on the immunity issue, the more expeditiously the appellate process can commence. Hence, if Merchan is ready to rule on immunity now, he should do that. Even then, the coming appellate process is apt to take many months. Even if he ruled on immunity today, it is highly unlikely – I am inclined to say, inconceivable – that sentencing could occur on November 26.
I’d like to think it is not inconceivable that, with the election no longer a consideration in his mind, Merchan could fairly rule on the immunity issue without being so invested that he minimizes a profound error in which he was complicit. Trump is wrong to contend that the Supreme Court’s immunity ruling should result in the dismissal of Bragg’s indictment. It should, however, result in the vacating of the guilty verdicts and a new trial.
The case is such a travesty that it never should be tried again. But if Judge Merchan does not correct his error, some higher court probably will – or will ultimately reverse the case on one or more of the egregious errors that parade through the record.