Posts

Judge Merchan’s Half Baby

/39 Comments/in /by

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.

2024 Remains an Unpredictable Race: Six Predictable Things that Could Still Upend It

/145 Comments/in /by

Donald Trump announced he was running in the 2024 Presidential race over 21 months ago. Tomorrow marks four weeks since Joe Biden dropped out of the race. It marks two weeks since Vice President Harris became the presumptive Democratic nominee. Monday, the Democratic Convention starts.

Back before and when Joe Biden dropped, I was certain about two things: that Kamala Harris would bring a lot more stamina to the race and she would give much better voice to a pro-Choice position that could impact the outcome of the race. I was also pretty sure that because someone was out selling wildly successful policies, both Biden and Harris’ approval ratings would improve (remember my screen caps are 5 hours ahead of ET; this tweet was three hours after Biden dropped and two after he endorsed Harris).

I hoped that Kamala would break the Double Hater logjam that has characterized the past two Presidential races (and this one, until that point).

Kamala’s approval ratings have gone up (Biden’s are less dramatic, but have ticked up maybe a point so far).

And newfound enthusiasm, especially among Independent voters, suggests the Vice President may, indeed, break that Double Hater logjam.

That said, I think far too many people are complacent in their belief that Harris will continue to slowly grow a lead that will be sustainable in the face of whatever rat-fuckery Trump tries in November.

If we’ve learned one thing about the 2024 election, it’s that normal predictions won’t hold.

I still think a true Black Swan event is possible — something like a global war.

I also think the unpredicted and widespread notoriety of Project 2025 will upend any normal political outcomes. It’s not just a post-Dobbs election (with abortion on the ballot in swing states like Arizona), but continued coverage of Project 2025 in both the political and the popular press has put democracy on the ballot in a surprising way.

But even the following six things are quite possible, which could significantly affect the race in a number of ways.

Big protests at DNC: Many of the people pressuring Biden to drop, including Nancy Pelosi, favored some kind of speed primary. Instead, Biden and Harris managed to make that impossible within 24 hours of his departure. So instead of a wildly divisive Convention, Harris can instead mostly look forward to a lovefest, where the biggest questions are whether Jimmy Carter can manage a video cameo and which surprise performers — potentially including Bruce Springsteen, Beyoncé, or even Taylor Swift will show up.

The very important caveat to that, though, is that around 30 Uncommitted delegates can will cause some dissension inside the Convention and tens of thousands of protestors will cause even more outside of it. It’s the latter I’m most worried about. The protests themselves will restore attention to the ongoing catastrophe in Gaza. But they’re also an easy target that provocateurs and right wing cops can exploit.

Meaningful ceasefire in Israel — or, further escalation: In the face of potential escalation, negotiators have redoubled efforts to forge some kind of ceasefire deal. But there’s some reason to believe that Trump and Bibi will thwart this at all costs.

The potential for Gaza to dampen Democratic enthusiasm (or to juice third party candidates) has long been a focus. But few have fully unpacked how it has been exploited by the right. So one way or another, this continues to be the most obvious pivot for more dissension among likely Democratic voters.

And all that’s before Iran’s very real efforts to target Donald Trump.

Superseding indictment and/or September sentencing for Trump: As of right now, Trump is due to be sentenced in his New York document fraud case on September 18 and the parties in Trump’s January 6 case should begin discussing what to do about SCOTUS’ immunity indictment in early September.

Yesterday, Trump asked to delay the sentencing until after the election. Roger Parloff gave a nuanced assessment of the mostly but not entirely frivolous request. Even if he’s sentenced, it’s not at all clear that Juan Merchan would sentence Trump to prison time.

Meanwhile, I’m not the only one who thinks that Jack Smith asked for an extension until the last possible day to supersede Trump before the election because he may be contemplating such a course (since I wrote that post, DOJ has chose to recharge even more crime scene January 6ers charged with obstruction). A superseding indictment might add his co-conspirators (what others predict) or change the crimes charged against Trump (my own suspicion). One way or another, though, there will be legal proceedings on the January 6 case in September, proceedings that have the possibility to expose more details about how closely Trump’s team worked with the Proud Boys or about how central a role Trump played in sending bodies to the Capitol.

The thing about both these eventualities is that it’s not at all clear whether the rule to date — that Trump’s legal troubles only make him more popular with right wingers — will hold, not least because independent voters will finally be tuning in. And even if they do, they’ll happen against a backdrop where Kamala is running as a prosecutor who has taken on thugs like Trump in the past.

Another tumultuous debate: Trump actually had a really poor debate in June, but a combination of asymmetric press coverage and normalization of Trump covered for that. If he has another such debate, it could serve as a real weight on his campaign.

But it’s really not guaranteed that Kamala will ace a debate either. Trump’s ability to reframe entire conversations is unmatched, and thus far no moderator has been able to rein that in. Plus, for at least half of Trump’s presidential debate appearances, he has arranged some kind of gimmick for them (such as hosting Tony Bobulinski or making a framed false claim about Biden’s role in the Mike Flynn investigation). Usually, they fizzle, but you can’t guarantee they will.

Further decline in Trump’s mental state: Honestly, I think the degree to which Trump’s rambling and grievance are new is wildly overblown. He has always been like this. But I think the way in which it has been perceived of late has changed. That’s partly true because his schtick has gotten tired enough that even Trumpsters have begun to tune out (and occasionally, leave his events) in noticeable numbers. Because Trump has attempted to replace his big rallies in recent weeks, appearing at events with smaller or no crowds, he hasn’t gotten the juice he normally gets from crowd adulation that he needs to pull off his performances.

That may change now that the Secret Service has developed a plexiglass booth to protect him outdoors.

Even still, Kamala Harris has found ways to trigger Trump’s ugliest side, making it harder for him to control his grievances.

As a result, the press and some Republicans have begun to comment on his mental performance in a way they’ve haven’t done since 2016.

Far right political violence: As I laid out here, Trump’s allies and Elon Musk have both been part of a transnational effort to stoke violence based on fearmongering about migrants. In the past, right wing efforts to sow fear based on fabricated claims about caravans and the like have failed. And there’s always the likelihood that Trump’s mob will rise up in response to one of the events above, such as a superseding indictment.

As noted at the start of this post, it is possible that Kamala Harris will continue to engage new voters, competing in states (started with North Carolina) that haven’t been competitive in years.

But that’s if trends continue. And this year, there’s lots of reason to question whether they will.

Update: WaPo’s latest (very positive for Kamala) poll shows that the number of people happy with their choices for POTUS have gone up 16 points, a measure of the decline in Double Haters.

In July, when the contest was still Biden vs. Trump, 28 percent of voters overall said they were satisfied with the choice. Today, 44 percent say they are satisfied with the choice of Harris or Trump.