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As the left’s once potent lawfare campaign against Donald Trump continues to collapse, New York Judge Juan Merchan delayed his plan to rule on Tuesday as to whether the President-elect’s conviction in Manhattan should be dismissed based on the recent Supreme Court’s immunity decision.
But there is more to it than that.
Merchan now wants to hear from Manhattan District Attorney Alvin Bragg just how prosecutors believe the case should be handled going forward in light of Trump’s victory last week in both the Electoral College and popular vote. The judge surely recognizes that there are constitutional concerns that militate in favor of dismissal.
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It is well established in law that a sitting president is entirely immune from indictment, prosecution, or any criminal process in state and federal cases. This doctrine was long ago enunciated by the U.S. Supreme Court and has been strictly followed by the Department of Justice. The reason is simple: Presidents have a unique responsibility under our Constitutional framework and must be free to discharge their duties without interference.
The same principles of immunity from criminal process necessarily extend to a President-elect during the critical and time-consuming transition as he forms a new government and prepares for official acts in the national interest before being sworn in. This is reinforced by the Presidential Transition Act which prohibits “disruptions…in the transfer of the executive power.”
Under the Supremacy Clause of the Constitution, states have no legal right to impede such federal authority. A single local prosecutor is not empowered to interfere with the functions of the Executive Branch. It would be a dangerously impermissible intrusion. For this reason, Bragg must voluntarily dismiss his case against Trump. The D.A. waited years before filing any charges and only did so after Trump announced his candidacy for President.
If Bragg refuses to capitulate, Judge Merchan should dismiss the case in the interests of justice. He can not now legitimately impose restrictions on the President-elect prior to taking office or anytime thereafter. This renders the scheduled November 26th sentencing legally suspect, if not improper.
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Some have suggested that either the sentencing or an imposed sentence could be deferred until after Trump leaves office in 2029. But that would violate state law (CPL 380.30) which requires “a specified date no later than twelve months from the entering of a conviction.” Regardless, it would still have the net effect of impacting the president negatively during his tenure in office. The Constitution does not tolerate such encroachment.
Manhattan District Attorney Alvin L. Bragg, Jr., and his legal team, hold a press conference following the Trump verdict on May 30, 2024, in New York, N.Y. (Ricky Carioti/The Washington Post via Getty Images)
The still-pending motion before Judge Merchan is based on the July 1 decision by the Supreme Court that former presidents have substantial immunity from prosecution for official acts while in office. At trial, Bragg’s prosecutors wrongfully introduced the very kind of evidence and testimony that is protected. Merchan permitted it. This prejudiced the case and constitutes reversible error. Knowing full well that the high court was considering the issue, Merchan should never have let it happen.
This was one of many mistakes in a misbegotten prosecution.
The case against Trump was always convoluted and legally unsound, principally because it is not a crime to conceal a perfectly legal non-disclosure agreement. But that legal nicety did not stop Bragg from resurrecting expired business records misdemeanors and turning them into phantom election felonies. Without authority as a local prosecutor, he pursued violations of federal law that federal prosecutors refused to bring.
Democrats hoped that their lawfare campaign would sully Trump as a criminal and thereby end his candidacy. Instead, the opposite occurred. The Republican nominee skillfully turned the tables by making it a relevant issue for voters who increasingly saw him as a victim, not a villain. He made his case in the court of public opinion and a majority of Americans issued their verdict.
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In the end, the Trump trial solidified the revulsion that people felt at how Democrat prosecutors weaponized the law for political gain.
Trump never stood a chance at a fair trial in New York. In a venue where 90 percent of the population voted against him in the 2020 election, the fix was in. Presiding was a judge handpicked by the D.A.’s office and who donated to President Biden while contributing to a stop Trump organization.
Given the presidential election result, both the prosecutor and judge now have a unique opportunity to end this case before enduring the embarrassment of being overturned by higher courts.
Merchan’s adult daughter helped raise millions of dollars for Democrats and arguably had a financial interest in the outcome of her father’s case. All of this created, at the very least, the appearance of a disqualifying conflict of interest, which the judge ignored.
It therefore came as no surprise that Merchan’s evidentiary rulings from the bench were consistently one-sided. Prejudicial evidence with little or no probative value was somehow deemed admissible against Trump.
Throughout the trial, Merchan ignored his duty to protect the rights of the accused and refused to allow a key witness to testify for the defense that no federal election violations ever occurred because the “hush money” payments to Stormy Daniels did not qualify under law as campaign contributions.
On a daily basis, Merchan shredded the defendant’s due process rights by committing a myriad of reversible errors. These rulings were driven by an anti-Trump bias that the judge seemed to wear proudly on his sleeve.
As if all of that wasn’t bad enough, Merchan then obliterated the sacred principle of unanimity in verdicts by instructing jurors that they did not have to agree unanimously on a singular unlawful act. They could freely disagree while still convicting Trump.
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We still don’t know (and neither does Trump) which election crimes were supposedly committed and how jurors voted on each. They could have been split among three options offered by the prosecution. If so, just how that could result in a “guilty” verdict remains a mystery.
The judge’s instructions were defective and wrong. He effectively tore up a fundamental right embedded in Constitutional principles. The Supreme Court has previously held that unanimity extends to all key issues, including every necessary element of a primary crime and, in this case, the establishment of a secondary crime.
Bragg and Merchan must know that Trump’s jury verdicts will never withstand judicial scrutiny on appeal. From beginning to end, the case was rife with errors that make an eventual reversal a near certainty.
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Given the presidential election result, both the prosecutor and judge now have a unique opportunity to end this case before enduring the embarrassment of being overturned by higher courts. Their vindictive lawfare strategy failed at the ballot box.
Dismissing the case now gives them an off-ramp. They should take the exit.
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