GREGG JARRETT: Trump’s sentencing is canceled. Will reality ever take a bite out of Bragg’s outrageous case?
"The law is an ass" is an English proverb now liberally practiced by certain American judges who are neither sensible nor fair.
New York Judge Juan Merchan has consistently proven the point by his maltreatment of Donald Trump in the ill-conceived, if not farcical, prosecution brought by Manhattan District Attorney Alvin Bragg. The case resulted in preordained guilty verdicts last May in a trial that stands as a monument to injustice.
But on Friday, in the aftermath of Trump’s presidential victory, Merchan canceled next week’s scheduled sentencing and reluctantly agreed to formally consider a defense motion to dismiss the case entirely. A sensible and fair judge would grant it. That may exclude Merchan.
In previous letters to the judge, defense attorneys make a compelling argument that the convictions should be vacated given their client’s election as the next commander-in-chief. It is a position that is constitutionally unique.
They correctly contend that "immediate dismissal is mandated by the federal Constitution, the Presidential Transition Act of 1963, and the interest of justice to facilitate the orderly transition of executive power…"
Indeed, it is well established that presidents are immune from any criminal process, state or federal. This same principle necessarily extends to a president-elect who must be free from "disruption occasioned by the transfer of power." (3 U.S.C. 102 note)
States have no authority to transgress federal laws passed by Congress, including the Transition Act. Interference by a local prosecutor and/or judge could jeopardize the national interest and prove detrimental to the safety and well being of its people, as the statute explains.
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In his Friday order, Merchan also recognized his authority to set aside the verdicts if mistakes were made at trial which would merit reversal. There were so many that you’d need a calculator with infinity technology to keep track.
Chief among them was 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 such as Hope Hicks and Madeleine Westerhout, as well as numerous presidential records, should never have been introduced. They quite clearly constituted "official acts" that are protected and thereby inadmissible, just as the defense argued in vain pre-trial. Merchan was unmoved.
For months, Bragg has opposed dismissal. He implausibly claims that such immunity evidence was wholly unimportant and had "no bearing" on the outcome. Really? Why then did his prosecutors emphasize the crucial nature of that very evidence during closing arguments?
Considering Merchan’s blatant anti-Trump bias throughout the trial, he could still side with Bragg by asserting that the court’s reversible error was merely harmless and had little or no impact on the jury’s verdicts. If he does, the judge must to turn a blind eye to how the high court specifically foreclosed this type of harmless-error analysis.
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Should Merchan reject dismissal, it would allow the Trump team to seek an immediate appeal on the immunity issue. It represents such an affront to the law that the entire case stands an excellent chance of being overturned on that basis.
The trial court’s immunity mistake is just one of many egregious errors committed by Merchan. His courtroom was a cesspool of incomprehensible rulings that deprived Trump of a fair trial. Both judge and prosecutors worked in concert to engineer the guilty verdicts.
At every turn, they manipulated the law and mangled evidence while operating outside the confines of the legal process. Political bias smothered the defendant’s due process rights. They were run through an industrial-size shredder.
The charges themselves were so convoluted as to be incoherent. We still don’t know what Trump was convicted of. Theoretically, bookkeeping errors were allegedly committed to further another crime in an unlawful attempt to influence the 2016 election.
But what a minute. What crime exactly? Was it federal campaign law violations? Taxation laws? False business records? Select from the aforementioned menu of imaginary possibilities.
Trump doesn’t even know because prosecutors never said. And neither did the jurors when they rendered their verdicts. 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.
If you’re scratching your head, you are not alone. Even a high school civics student knows that unanimity in criminal convictions is a bedrock principle. The Supreme Court has reinforced that standard repeatedly. Yet, Merchan ignored it with impunity.
The dilemma for Trump is that he can not appeal any of the judge’s legal errors at trial (with the exception of an adverse immunity ruling) until there is an official "adjudication" which occurs only at sentencing. At present, that process is on hold indefinitely.
This is by design. Merchan and Bragg both know that the convictions will get tossed if an appellate court ever gets a gander at the trial charade. That is precisely why they aim to defer or delay sentencing, perhaps until after Trump leaves office in 2029. The president would spend four years with a coercive "sword of Damocles" dangling overhead.
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If that is their unscrupulous scheme, it would violate New York state law (CPL 380.30) which requires sentencing at "a specified date no later than twelve months from the entering of a conviction." Not that Merchan cares.
Thus far, he seems unmoved by the great weight of the law that frowns on his Machiavellian machinations. Either determined or desperate, his honor clings dishonorably to a vindictive prosecution. Trump was falsely accused and wrongfully convicted.
Yet Merchan persists in propping up a tortured case that should have been quashed by him the moment the indictment was rendered. It was a harebrained prosecution from the outset, motivated by a politically-driven DA who happily embraced the Democrats’ corrupt lawfare campaign against Trump.
This eight-year-old odyssey is the personification of a shameful miscarriage of justice.
The law itself is not an ass. But Merchan has made it look like one.