Judge Merchan’s Half Baby
Judge Merchan has rejected Trump’s challenges to his conviction in the New York hush money case and scheduled a sentencing for January 10. But he has intimated he will sentence Trump to an unconditional discharge — meaning he won’t serve a jail sentence or probation.
In my opinion, this is a tactical decision and like every other legal decision about Donald Trump, unsatisfying and inadequate.
I think Merchan is trying to affirm the import of the jury’s guilty verdict, while daring Trump to ask for more.
The tradeoff I think Merchan is making is that by giving Trump nothing tangible to lose except his claim to innocence, he nevertheless situates the case in such a way that Trump can appeal.
But Merchan did so while weighing the record in favor of judicial independence.
After affirming the seriousness of Trump’s crime and the evidence against Trump (the first of ten “Clayton Factors” Merchan was obliged to consider given Trump’s request he just make the case go away), Merchan next addressed Trump’s claim that his contributions to society say he should escape punishment.
Merchan used that factor to discuss Trump’s attacks on Courts and Rule of Law. Among the items Merchan listed was the need to gag Trump; he noted, too, that even the Supreme Court backed his decision.
Defendant argues that his “contributions to this City and the Nation are too numerous to count,” and concludes his argument under this section by referencing two NY Supreme Court cases which are entirely distinguishable.T Defendant’s Motion at pg. 59. This Court agrees that Defendant served his country as President and will do so again in a matter of weeks. However, that service is but one of the considerations to weigh under this factor.
Despite Defendant’s unrelenting and unsubstantiated attacks against the integrity and legitimacy of this process, individual prosecutors, witnesses and the Rule of Law, this Court has refrained from commenting thereon unless required to do so as when ruling on motions for contempt of court. However, Defendant, by virtue of the instant motion, directly asks this Court to consider his character as a basis to vacate the jury verdict, and this Court must do so in accordance with the requirements of CPL section 210.40(1)(d).
Defendant’s disdain for the Third Branch of government, whether state or federal, in New York or elsewhere, is a matter of public record. Indeed, Defendant has gone to great lengths to broadcast on social media and other forums his lack of respect for judges, juries, grand juries and the justice system as a whole. See People’s Response at Section IV. C. In the case at bar, despite repeated admonitions, this Court was left with no choice but to find the Defendant guilty of 10 counts of Contempt fot his repeated violations of this Court’s Order Restricting Extrajudicial Statements (“Statements Order”), findings which by definition mean that Defendant willingly ignored the lawful mandates of this Court. An Order which Defendant continues to attack as “unlawful” and “unconstitutional,” despite the fact that it has been challenged and upheld by the Appellate Division First Department and the New York Court of Appeals, no less than eight times. Indeed, as Defendant must surely know, the same Order was left undisturbed by the United States Supreme Court on December 9,2024. [citation]. Yet Defendant continues to undermine its legitimacy, in posts to his millions of followers. Indeed, this is not the only instance in which Defendant has been held in contempt or sanctioned by a Court.8 Defendant’s character and history vis-a-vis the Rule of Law and the Third Branch of government must be analyzed under this factor in direct relation to the result he seeks, and in that vein, it does not weigh in his favor.
8 For example, Defendant has been held in contempt by courts within this jurisdiction and sanctioned by others. People of the State of New York v. The Trump Organizotion, Inc., No. 451G851202O [citation] (“Frivolous lawsuits should not be used as a vehicle for fundraising or fodder for rallies or social media. Mr. Trump is using the courts as a stage set for political theater and grievance. This behavior interferes with the ability of the judiciary to perform its constitutional duty) [my emphasis]
Trump claimed he was too important to sentence. Judge Merchan responded that Trump has undermined the Courts at every level.
And then he noted that the Supreme Court had backed him, Merchan, in defending the sanctity of his court.
That’s not the only legal issue Merchan highlighted as important. Merchan also noted Trump’s claim to President-elect or retroactive immunity.
Defendant presents this Court with the novel theory of President-elect immunity as it applies to [citation], arguing that such immunity presents a “legal impediment to conviction.” For the reasons stated above, this Court remains unpersuaded that President-elect immunity is the law and thus, neither that doctrine, nor the Supremacy Clause or Presidential Transition Act present a legal impediment to imposition of sentence. Alternatively, Defendant seeks, in essence, a form of retroactive immunity. Both of these theories are briefly addressed below.
Essentially, what Defendant asks this Court to do is to create, or at least tecognize, two types of Presidential immunity, then select one as grounds to dismiss the instant matter. First, Defendant seeks application of “President-elect immunity,” which presumably implicates all actions of a President-elect before taking the oath of office. Thus, he argues that since no sitting President can be the subject of any stage of a criminal proceeding, so too should a President-elect be afforded the same protections. Defendant’s Motion at pg. 35. Second, as the People characterize in their Response, Defendant seeks an action by the Court akin to a “retroactive” form of Presidential immunity, thus giving a defendant the ability to nullify verdicts lawfully rendered prior to a defendant being elected President by virtue of being elected President. It would be an abuse of discretion for this Court to create, or recognize, either of these two new forms of Presidential immunity in the absence of legal authority. The Defendant has presented no valid argument to convince this Cout otherwise. Binding precedent does not provide that an individual, upon becoming President, can retroactively dismiss or vacate prior criminal acts not does it grant blanket Presidential-elect immunity. This Court is therefore forbidden from recognizing either form of immunity.
Merchan is right: these are garbage theories. Theories that even most of SCOTUS would reject.
And that may be why Merchan adopted his wildly unsatisfying approach to sentencing. First, he rejected Alvin Bragg’s bid for an Alabama Rule because it would not permit Trump ability to appeal — to appeal his retroactive immunity claims, to appeal his claim about judicial prerogatives. Similarly, Merchan declined to just hold the sentence in abeyance unless he was unable to sentence Trump.
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 hrs 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.
And after telling Trump the only way he would just hold the sentence in abeyance is if he were not able to sentence him before his term, Merchan informed him that he’s inclined to given him a sentence of unconditional discharge, in part so Trump can appeal.
a sentence of an unconditional discharge appears to be the most viable solution to ensure finality and allow Defendant to pursue his appellate options.
Merchan is giving Trump a choice: Show up — even by video — and be sentenced as an adjudged fraudster — with the expectation that he won’t go to jail and if he wants to appeal things like his retroactive immunity and bad character he can do so. Or he can no show.
In which case the sentence will hang over his head for the entirety of his presidency.
None of this is satisfying.
But Judge Merchan seems to have carved out a little corner of rule of law — retroactive immunity and the judicial contempt on which even this SCOTUS has already upheld Merchan — that Trump can test before the Supreme Court. If Trump wants to take those chances, he can have an unconditional discharge precisely so he can make that appeal.
Or he can have the sentence hanging over his head for his entire term.
What’s your bet Marcy?
A no show doesn’t seem like the don.
But do you really think he cares if this case hangs over his head as he struts around the next 4yrs?
His voters sure don’t give a shit and he has no shame.
re: struts around
It’s my understanding that some counties, say Canada, deny entry to convicted felons. How will this fact play-out when Trump attempts to strut on Ottawa declaring Canada the United States’ 51st state?
/snark
He wont get past the border here – but he doesn’t have any plans to come here anyway.
We’ll be in talks to annex California, the PNW and Eastern seaboard into Canada meantime lol
Speaking as a resident of Eastern Washington I am BEGGING you to get these talks underway as soon as possible. An international border between here and Idaho would be awfully comforting.
PNW resident here! I live in very red Eastern Oregon. I’d much rather be annexed into Canada than “Greater Idaho.”
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Superb critique of Judge Merchan’s ruling!
And Merchan’s ruling is giving both Trump and the SCOTUS plenty of opportunity and rope to hang themselves for all to see.
It’s better for the public to know now or as soon as possible how both Trump and the SCOTUS will respond to this ruling.
Although time will pass agonizingly slow over the next four years as Trump screws up everything he tries and touches while president, it’s important that rulings such as this one flush the SCOTUS and Trump
out from privacy of their offices and into the public eye by forcing them to declare what they think about the issues raised in Merchan’s ruling.
It’s quite possible Trump will not want to appeal; it’s also quite possible the SCOTUS doesn’t want Trump to appeal, so both could simply avoid having to declare what they think.
And the entity that is perfect for making that happen is the Federalist Society leadership. Their leadership and leadership’s attorneys can make that happen. Their connections to Trump and the SCOTUS run deep and strong.
The U.S.P.S. still hasn’t recovered from the last time Trump got his stubby li’l fingers involved in its operation, nor has the CFPB been as good as it was under President Obama, after Trump got his stubby li’l involved in THAT operation as well.
I am guessing Trump blows off the sentencing. He doesn’t care. He certainly cannot understand the implications of the sentencing hanging over his head. We will see. But the man is a lying moron, so there is that to consider.
I guess I don’t understand how sentencing in the courts work. I don’t understand this part of the post:
“Or he can no show.
In which case the sentence will hang over his head for the entirety of his presidency.”
What will hang over his head? The possibility of receiving some sentence of the judges choosing at a later date? ( After he is no longer president ?) Or consequences for not showing?
If it’s just waiting until he’s no longer president, I very much doubt Mr Trump will ever step into any court room again if he can avoid it. He’s not going to put himself in a position where others might have power over him. It’s far simpler to use his pulpit to attack Judge Merchan as corrupt and then have the FBI investigate/persecute him for some invented fancy.
Unknowing here as well.
If he chooses not to show can’t he be sentenced in absentia?
Look for footage of him next spitting on the face of Lady Justice Statue.
All these words are his Lawyer’s. Once he’s on stage he is going to be rambling endlessly incoherent tangents that even his followers will eventually also find understandable and tiresome.
I like he is fuming.
Takes its toll.
Trump treats courtrooms, and especially the spaces outside them, as rally venues, to the extent that he can gin up an audience. He doesn’t seem to be doing much of anything else these days. Why not show up in NYC and blather about the injustice system?
When former President Jimmy Carter passed at the age of 100 on December 30th 2024, President Joe Biden issued a proclamation on former President Carter’s death, ordering American flags to be flown at half-mast for 30 days. President Biden also marked Jan. 9, 2025, as a National Day of Mourning.
On January 20th 2025, still within the 30-day proclamation issued by President Biden, the American flag will be flown half-staffed during Donald Trump’s inaugural. This visual will also be symbolic of decent America in mourning over its new POTUS – convicted felon and adjudicated sexual assaulter, Donald J. Trump, and Trump’s ascent to the U.S. Presidency.
And…he’s already had the poor taste (of course!) to weigh in with his endless grievances on this very topic:
https://www.reuters.com/world/us/trump-complains-that-us-flags-will-be-half-staff-his-inauguration-day-2025-01-03/
Petty.
Flags at half-mast is for ships. On land it’s half-staff.
This is not the first time this has been clarified in threads since Carter passed. Can we get this right and move on to more pertinent discussion about the topic?
It has to be layed down, like cement (or in stone if we’re getting historical-wise).
If nothing else. There’s a whole generation without History.
Merchan is throwing down a dare to Trump.
(a) “You want to appeal? Fine. You can’t do that until I pass sentence, so show up on Jan 10 and let’s get that over with.”\
(b) “You don’t like it? Tough. I want to see you on Jan 10th, and then you can take it up with the Court of Appeals and SCOTUS.”
Trump is no doubt livid that he can’t simply ignore this.
sadly, i got to page 7 of Roberts’ 2024 End of Year Report before
i heard myself saying in an audible scold: oh S H U T U P …
but i will finish it.
perhaps.
there’s a neat filleting of Roberts’s turgid encomium to the once-and-future capo by sherrilyn ifil on dahlia lithwick’s Amicus podcast for 1/4/25.
it’ll take a little of the bad taste out of your mouth.
ah … i shall look into that. graci.
Trump believes he has the right to pardon himself as he stated on X before he got kicked off:
As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong? In the meantime, the never ending Witch Hunt, led by 13 very Angry and Conflicted Democrats (& others) continues into the mid-terms!
8:35 AM · Jun 4, 2018
Despite the charges being in a NY state court and the general prohibition of someone acting as their own judge Trump would likely still try to pardon himself if he lost on appeal. But since acceptance of a pardon is considered to be a confession of guilt would he be loath to do that except as a last resort?
If he drags this out until he dies, doesn’t the whole case go away? I thought that’s how Ken Lay (from the Enron scandal) “died an innocent man”.
Like the lady at the beginning of “Bride of Frankenstein”, I won’t believe he–or Jeffrey Epstein–are dead until I see their blackened bones.
Is there any precedent for a judge to sentence a convicted felon to an “unconditional discharge?” I assume the DA would have a strong case to appeal such a “sentence?”
Does the judge not have the discretion to impose fines?
If Judge Merchan agrees this is a serious crime I’m not clear what is the downside for him to impose a sentence of e.g. probation where the probation obligations are deferred until after Trump’s term in office? Doesn’t probation mean that the sentence can be modified if the defendant is indicted for new crimes? (Not necessarily crimes in NY? )
I think it’s very likely Trump will commit more personal crimes in Term 2, he can’t help himself. Wouldn’t probation provide some deterrence and accountability for further criming that an unconditional discharge does not?
I understand that many are disappointed there was no “punishment.” The label “convicted felon” is forever. Like the scarlet letter A that Hester Pryne wore.
When it comes to Trump and how is able to wiggle his way out of legal justice time and again, I will take the convicted felon label as a win.
Unfortunately, Trump may also take the convicted-felon label as a win. I wouldn’t put it past Mr. Mug Shot.
Otherwise, I guess I’m with you…it’s all we’ve got left.
Am I correct in thinking that criminal sentences that are less than the maximum allowed by law typically include sanctions which could be imposed if the defendant re-offends during the probationary period? Given Trump’s forthcoming immunity from Federal and, perhaps, state charges while President, it would be hard to imagine his violating probation conditions while President. That leaves Trump threatened with probation revocation only for the 10 days between 1/10 and 1/20 and, if the probation is long enough, in his post presidency time. I hope the Judge gives him 10 years of probation conditioned on remaining law abiding. He wouldn’t be able to remain law abiding.
People need to stop overworking this. Merchan worked hard to devise a clean way to confirm Trump’s conviction that would survive appeal. It’s not what a majority of Americans wanted, but it’s a lot more than Trump can stomach. It will give him heartburn for life.
The consequences for a Florida resident of being a convicted felon are considerable, including not being able to vote. Its origins are racist, and the state has gone out of its way, starting with Jim Crow, to make it so. Its legislature has fought citizen efforts to reform those harsh punishments. So the irony is delicious as well as embarrassing for Trump.
All good points, but there’s an additional thing to consider. In Florida, the governor can ensure through executive clemency that a convicted felon’s civil rights are restored. It’s not a stretch to figure that any Republican governor of Florida would do that for Trump.
But as earlofhuntington suggests, the symbolic rebuke would remain even if that happens.
I agree that any probable Florida governor would give Trump back his voting rights. But Trump’s not likely to ask for them back until he’s exhausted his appeals. Otherwise, he would be accepting his status as a convicted felon. Because the grant is discretionary with the govenor, imagine what DeSantis or any other FL governor would want in exchange.
Great post Earl. Kudos!
“It’s not what a majority of Americans wanted”
I suspect you are referring to a majority of voters who turned out in November 2024 and not all Americans.
Trump ranked worst POTUS in history; Biden 14th best
https://www.theguardian.com/us-news/2024/feb/20/presidents-ranking-trump-biden-list
Con-Con
Caught by his own sham finance
Now he’s in his Con-Con stance
Throws his hands up in the air
Is his brand in disrepair
This is his just circumstance
While he takes his Con-Con chance
As he’s cornered by the law
Flushed inside his last hurrah
Mr. Con-Con
Throws his hands up in the air
Mr. Con-Con
Now his brand’s in disrepair
Mr. Con-Con
As he’s cornered by the law
Mr. Con-Con
Flushed inside his last hurrah
Flushed inside his last hurrah
Chorus:
Con, let’s just call him Con-Con
Master of the flimflam
Confidence man is in a jam
Nicked name Con-Con
Let’s just call him Con-Con
Nicked name Con-Con
Convicted Con-Con
https://www.youtube.com/watch?v=my0qo5rs2gc
“Infernal Galop “The Can Can” 89 key FAIRGROUND ORGAN Gavioli Mechanical Music”
I think the dilemma the Judge Merchan has posed to Trump is 1) appear for sentencing and receive unconditional discharge BUT become a convicted felon, or 2) no show and have this case hang over his head for eternity.
The issue is that if he chooses to show he will be verbally admonished by both the prosecution and the Judge, both of whom represent the people of New York. He can then appeal.
If he stonewalls the hearing, Judge Merchan can delay sentencing until after Trump’s second term, but also cite him for contempt – and add that to Trump’s previous ten counts of contempt. Merchan will not dismiss the case on his own and Trump cannot appeal the case until Merchan sentences him, probably in 2029.
This is a pretty coy play for Merchan. He knows Trump just wants this to go away, but he will need to go through sentencing either now or four years from now. If he does NOT show, Merchan is free to put this on hold AND throw him in Rikers for a year as a retirement present. He would certainly deserve it.