Judge Merchan is a Guardian of Justice

Judge Juan Merchan has denied Trump's motion to throw out his 34 felony count conviction and scheduled sentencing for January 10th.

I had the distinct honor of being in the courtroom this past April to watch the testimony of Michael Cohen in the election subversion hush money trial of Donald J. Trump - a case I had been following since its inception in the Southern District of New York.

The jury convicted him on all 34 felony counts he was charged with, and we all celebrated that no one, not even an ex-president, was above the law. And even though we were sure at the time that Americans wouldn’t elect a convicted felon, that’s exactly what happened on November 5th.

Pursuant to his electoral victory, Trump filed a motion to throw out the jury’s verdict, claiming that a president-elect can’t be prosecuted - and sentencing is part of prosecution. The Manhattan District Attorney argued that while he respects the Constitution’s assertion that a president can’t be burdened with prosecution, a jury’s verdict demands just as much respect under the law.

Today, Judge Merchan denied Trump’s motion to vacate the jury’s verdict, and has scheduled sentencing ten days prior to Trump’s inauguration. A true victory for justice, even though he will not be sentenced to incarceration.

The Judge issued an 18-page ruling. Let’s go over some highlights.

First, the judge explains what Trump was demanding:

Defendant argues that "[t]he Presidential immunity doctrine, the Presidential Transition Act, and the Supremacy Clause all require" dismissal "immediately." Defendant's Motion at pg. 1. In support, Defendant points not only to his status as President-elect, but also to alleged "unlawful" conduct by the prosecution, rulings of this Court allegedly in violation of Defendant's rights, and claimed evidentiary infirmities at trial, which either present a legal impediment to conviction or together, require dismissal in the interests of justice. The allegations of "unlawful" conduct against the New York County District Attorney ("DANY") include claims that DANY engaged in "politically motivated targeting" of Defendant; unlawfully "leaked" information about the investigation; tainted the jury pool by making improper public statements; engaged in repeated misrepresentations to this and other courts before, during, and after trial; and suborned perjury from prosecution witnesses, Michael Cohen and Stormy Daniels. Defendant also accuses this Court of impermissibly presiding over this matter despite the existence of an alleged conflict of interest, and of imposing an "unlawful gag order," a reference to this Court's Order Governing Extrajudicial Statements.

Whiny little bastard, isn’t he?

Here is Judge Merchan’s summary of the prosecution’s argument:

The People oppose Defendant's motion arguing that "President-elect immunity does not exist," and that the "vast majority of defendant's claims involve objections that this Court and others have repeatedly rejected." The People submit alternative remedies, short of a dismissal, which they argue still respect the doctrine of Presidential immunity from criminal process while at the same time respecting the verdict rendered by the New York County Jury. The alternative proposals include adjourning sentencing until after Defendant completes his term of office or the application of the "Alabama Rule" which would effectively permanently abate proceedings without dismissal or the imposition of sentence.

The judge then reiterates the sanctity of a jury verdict:

As indicated above, the Defendant has been found guilty on 34 felony counts. The significance of the fact that the verdict was handed down by a unanimous jury of 12 of Defendant's peers, after trial, cannot possibly be overstated. Indeed, the sanctity of a jury verdict and the deference that must be accorded to it, is a bedrock principle in our Nation's jurisprudence.

The judge then reminds us that there is scant precedent for the position we find ourselves in, and explains that he will rely on the Constitution, the two Department of Justice Office of Legal Counsel memos that preclude the prosecution of a sitting president, Trump v US (immunity), US v Nixon, Clinton v Jones, Trump v Vance (the first DANY on this case), and The Presidential Transition Act of 1973. He goes on to say that with the exception of Trump v Vance, all of these are federal considerations, but that it makes sense to apply them to state court as well.

First, the judge rules that a president-elect does not enjoy the immunity of a sitting president:

Applying the guidance of the aforementioned sources, this Court finds that Presidential immunity from criminal process for a sitting president does not extend to a President-elect. To begin, the Constitution dictates that only a President, after taking the oath of office, has the authority of the Chief Executive, a President-elect does not.

The judge then turns to the three concerns as outlined in the Department of Defense Office of Legal Counsel memo from the year 2000:

1. The actual imposition of a criminal sentence of incarceration.

2. The public stigma occasioned by the initiation of criminal proceedings.

3. The mental and physical demands of assisting with the preparation of a defense for the various stages of a criminal proceeding.

With regard to these three concerns, the judge begins with number 2, ruling that he’s not suffering from any stigma, especially given Trump’s own argument that he won the election:

…the case at bar is well past the initiation stage and whatever threat of public stigma from criminal prosecution that might have existed has long passed. Indeed, one of Defendant's most frequent arguments is that this Court should defer to the will of the citizenry who recently re-elected him to the Office of the Executive, notwithstanding an actual guilty verdict in this case. Thus, whatever stigma that might have existed, will most certainly not interfere with Defendant's ability to carry out his duties - both as President-elect and as the sitting President.

He then addresses the third concern. Trump had argued that since Jack Smith dismissed his case against him because the burden of prosecution would be too great, that the judge has to vacate this verdict. Merchan doesn’t buy it, though, reminding Trump that this is over and all that’s left is a brief sentencing hearing. Jack Smith hadn’t gotten to trial, so that’s a different story. “The vastly different procedural posture of the instant case renders any comparison to the Special Counsel's indictments unpersuasive.”

The judge continues by pointing out that the only reason we’re facing sentencing while he is president-elect is because Trump requested the delay until after the election. And this next part is awesome:

Defendant has always pronounced, since the inception of this case, confidence and indeed the expectation, that he would prevail in the 2024 Election - confidence that has proven well-founded. That he would become the "President-elect" and be required to assume all the responsibilities that come with the transition were entirely anticipated. Thus, it was fair for this Court to trust that his request to adjourn sentencing until after the election carried with it the implied consent that he would face sentence during the window between the election and the taking of the oath of office.

Did you catch that? You told us you’d win, and asked to be sentenced after you won, so you gave us the green light to sentence you as president-elect. That’s fantastic.

The judge concludes:

Finding no legal impediment to sentencing and recognizing that Presidential immunity will likely attach once Defendant takes his Oath of Office, it is incumbent upon this Court to set this matter down for the imposition of sentence prior to January 20,2025.

This Court must sentence Defendant within a reasonable time following verdict; and Defendant must be permitted to avail himself of every available appeal, a path he has made clear he intends to pursue but which only becomes fully available upon sentencing.

This Court has considered and now rejects the People's suggestion that it adopt the "Alabama Rule" which would preserve the jury verdict while terminating the proceedings as such a remedy would deny Defendant the pathway he needs to exhaust his appellate rights.

The Court has also considered the People's alternative proposal of holding sentence in abeyance until such time as Defendant completes his term of Office and finds it less desirable than imposing sentence prior to January 20, 2025. The reasons are obvious. However, if the Court is unable to impose sentence before Defendant takes his oath of office, then this may become the only viable option.

While this Court as a matter of law must not make any determination on sentencing prior to giving the parties opportunity to be heard, it seems proper at this juncture to make known the Court's inclination to not impose any sentence of incarceration, a sentence authorized by the conviction but one the People concede they no longer view as a practicable recommendation.

As such; in balancing the aforementioned considerations in conjunction with the underlying concerns of the Presidential immunity doctrine, a sentence of an unconditional discharge appears to be the most viable solution to ensure finality and allow Defendant to pursue his appellate options.

Unconditional discharge is a sentence that carries no punishment but maintains a crime has been committed; and the act of sentencing cements Trump’s status as a convicted felon. Merchan then scheduled the sentencing for January 10th at 9:30 AM ET.

You can read the full ruling here.

Thanks for reading, and you can hear former Capitol Police Officer Harry Dunn and I discuss this ruling on the next episode of the Cleanup on Aisle 45 podcast- which is free wherever you get your podcasts.

~AG