In language which will certainly have repercussions for the New York County case, the Supreme Court states that “[a]llowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.”
This ruling is not absolute. As is pointed out in a footnote intended to address concerns expressed in the concurring opinion of Justice Coney Barrett, Chief Justice Roberts states that “in a bribery prosecution [for instance], excluding ‘any mention’ of the official act associated with the bribe ‘would hamstring the prosecution’…of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act…[w]hat the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.”
In the New York criminal case, Donald Trump was not charged with receiving bribes or any similar wrong doing. He was accused of falsifying his business records in an effort to conceal another crime, which remained unspecified until the time of his trial. Those other crimes were an alleged violation of New York State election law, which was allegedly committed in an effort to violate either federal election law, federal tax law, or to falsify business records (yes, you read that right – Donald Trump allegedly falsified his business records, in an effort to falsify his business records).
As described by CNN, “Trump’s lawyers argued in a 55-page filing that the jury’s guilty verdict should be vacated because the district attorney’s office relied on evidence at trial related to Trump’s official acts as president, which Trump’s lawyers asserted should not have been permitted in light of the Supreme Court’s recent immunity decision….[i]n their filing, Trump’s lawyers pointed to testimony at trial – including from White House officials Hope Hicks and Madeleine Westerhout – they argued should not have come before the jury…'[a]ll of Hicks’s testimony concerning events in 2018, when she was serving as the White House Communications Director, concerned official acts based on {Presidential} authority for which President Trump is entitled to absolute immunity,’ Trump’s attorneys argued. ‘[the Supreme Court’s ruling] specifically forbids prosecutors from offering ‘testimony’ from a President’s ‘advisers’ for the purpose of ‘probing the official act.’” https://www.cnn.com/2024/07/11/politics/trump-new-york-conviction-argument/index.html
The filing by the former President’s defense team also asserts that “Westerhout was forced to testify about national security matters and her work for Trump, calling prosecutors’ questioning ‘invasive…[t]his invasive compelled testimony included information regarding President Trump’s official-capacity ‘work habits,’ ‘preferences,’ ‘relationships and contacts,’ and ‘social media’ practices at the White House,’ Trump’s lawyers argued.”
Most galling to Donald Trump’s lawyers is the fact that Judge Merchan was asked to delay the New York trial until after the Supreme Court had issued its immunity ruling. As CNN reports, [a]t bottom, the ‘pressure campaign’ theory turned on [District Attorney Alvin Bragg’s] efforts to assign a criminal motive to actions that President Trump took in 2018 as the Commander in Chief responsible for the entire Executive Branch,’ his lawyers wrote. The Manhattan district attorney ‘urged this Court to front-run the Supreme Court on a federal constitutional issue with grave implications for the operation of the federal government and the relationships between state and federal officials. The record is clear: [Bragg] was wrong, very wrong.’”
Will these arguments succeed? Will Judge Merchan reverse Donald Trump’s conviction?
Judge Merchan did delay the former President’s sentencing while he considers the motion to dismiss. But if we are to predict Judge Merchan’s actions in the future, we should be guided by his actions in the past. By this measurement, I don’t recommend holding your breath while you wait for justice from this judge.
To continue with the blunt analysis I provided to Congress regarding Judge Juan Merchan’ s conduct of the trial of Donald Trump, this court has taken every opportunity possible to violate the former President’s rights. Instead of dismissing a legally insufficient indictment, that failed to apprise Donald Trump of all the crimes with which he was charged, Judge Merchan allowed the prosecution to add additional charges during trial, and then instructed the jury that they did not have to return a unanimous verdict regarding those added charges.
Judge Merchan repeatedly allowed prejudicial testimony to be entered into evidence against Donald Trump (who could forget the titillating, and entirely irrelevant testimony of Stormy Daniels), and prevented the former President from testifying in his own behalf, by allowing prosecutors to use the civil verdicts and penalties assessed against Donald Trump, were the former President to have testified.
Further, Judge Merchan did not recuse himself from hearing the case, despite having displayed his bias against the former President by making contributions to the Biden campaign and to anti-Republican organizations. He then compounded this error by staying on the case, even after it was revealed that his daughter was profiting from the trial by raising money for Democrat candidates.
Now we have evidence that Judge Merchan allowed testimony regarding Donald Trump’s official acts as President, acts which enjoy absolute immunity and which cannot be used against him, or even be entered into evidence in a criminal trial, a situation which could have been avoided had Judge Merchan delayed the trial until he’d received the guidance of the US Supreme Court.
Knowing that Judge Juan Merchan committed the errors I outline above during trial, I believe he will find a way to justify his actions once again, and let stand the unlawful conviction of former President Donald Trump.
Don’t look for justice from Judge Juan Merchan. Instead, continue to expect a reversal of Donald Trump’s illegal conviction from the New York State Court of Appeals.
Judge John H. Wilson served on the bench in NYC
Photo: Pixabay