Merchan’s Get Out of Jail Card

 

I don’t know whether he sees it this way, but Judge Merchan should kiss the feet of the six Supreme Court justices in the immunity decision. President Trump’s attorneys filed a motion after the decision was announced, asking the NY court to stay sentencing while they submit a brief arguing that the verdict should be set aside because of the Supreme Court decision. Alvin Bragg’s office has not challenged that request although they give no merit to the argument. Judge Merchan has delayed the sentencing to accommodate filing briefs and arguing the question.

Merchan should see this as an absolute gift. The goal was never to jail Trump, much as many progressives want to see that outcome. It was to interfere in Trump’s ability to campaign and to present voters with the “convicted felon” theme. The question raised by the immunity decision is whether certain evidence presented in the trial should have been excluded — conversations with the president that may be covered with absolute or presumptive immunity. If any of the evidence should have been excluded (and at least some of it should have), and it was material to any factual determination of the jury undergirding the verdict, then the motion to vacate the verdict should be granted.

This should be a layup for the judge. And it has little effect on the political benefits of the conviction even if vacated. The vacation is a legal matter, not an erasure of history or the accounts of the trial that has been publicized widely. The judge can grant the motion and the charges remain. Bragg’s office gets to present the case to a new jury. The judge can blame the “outrageous” Supreme Court decision for having to start over. The gag order remains in place. Wash, rinse, repeat.

Since the judge will have granted a new trial, there is nothing for Trump’s lawyers’ to appeal regarding the old trial. It simply kicks the can down the road without erasing the public’s memory. The public will remember what happened and will react in whatever manner they were already reacting.

This is a gift to Judge Merchan who knows that if Trump wins re-election, he might have to reconsider his future on the bench, or maybe not. His daughter will bank more millions in the fall. So it’s all good. And there will be no reversal by a higher court as he has reset the court case. The case isn’t any better a second time, but it does not matter. The case was all about politics, optics, and holding Trump up to public scorn. And now the Supreme Court has given a reason for Judge Merchan to vacate the verdict and start over. There won’t be a second trial before the election, but there doesn’t need to be one. Both sides are getting the maximum benefit from the first trial: Democrats have a cudgel, and Republicans have an outrage.

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  1. Red Herring Coolidge
    Red Herring
    @EHerring

    If Trump wins the election, his daughter’s value to the party will be a bust.

    • #1
  2. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    My initial impression is that the immunity defense based on the recent SCOTUS decision will not prevail for Trump.  It is proper for Judge Merchan to allow briefing on the issue.

    I’ve reviewed the official syllabus of the SCOTUS decision, but have not read the decision in detail.  It’s about what I would expect, dividing the immunity decision into three categories:

    1. For the President’s “core” constitutional duties, in which his power is exclusive rather than shared with Congress, he has absolute immunity.
    2. For the President’s “official” duties, in which his power is shared with Congress, the President has “at least” presumptive immunity.
    3. For “unofficial” actions, the President has no immunity.

    Based on what I know about the New York case before Judge Merchan, I don’t think that Trump’s lawyers will be able to demonstrate that his actions at issue were within his “official” duties.  As I understand the case, it involved a conspiracy to cover up hush money payments, in which business records were falsified, with the underlying illegal motives for such falsification serving to elevate the offense to a felony.  The people involved, I think, were Trump’s personal lawyer and members of the Trump business organization.

    • #2
  3. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    Jerry Giordano (Arizona Patrio… (View Comment):

    My initial impression is that the immunity defense based on the recent SCOTUS decision will not prevail for Trump. It is proper for Judge Merchan to allow briefing on the issue.

    I’ve reviewed the official syllabus of the SCOTUS decision, but have not read the decision in detail. It’s about what I would expect, dividing the immunity decision into three categories:

    1. For the President’s “core” constitutional duties, in which his power is exclusive rather than shared with Congress, he has absolute immunity.
    2. For the President’s “official” duties, in which his power is shared with Congress, the President has “at least” presumptive immunity.
    3. For “unofficial” actions, the President has no immunity.

    Based on what I know about the New York case before Judge Merchan, I don’t think that Trump’s lawyers will be able to demonstrate that his actions at issue were within his “official” duties. As I understand the case, it involved a conspiracy to cover up hush money payments, in which business records were falsified, with the underlying illegal motives for such falsification serving to elevate the offense to a felony. The people involved, I think, were Trump’s personal lawyer and members of the Trump business organization.

    Thanks for this explanation. 

     

    • #3
  4. philo Member
    philo
    @philo

    Bryan G. Stephens (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    My initial impression is that the immunity defense based on the recent SCOTUS decision will not prevail for Trump. It is proper for Judge Merchan to allow briefing on the issue.

    I’ve reviewed the official syllabus of the SCOTUS decision, but have not read the decision in detail. It’s about what I would expect, dividing the immunity decision into three categories:

    1. For the President’s “core” constitutional duties, in which his power is exclusive rather than shared with Congress, he has absolute immunity.
    2. For the President’s “official” duties, in which his power is shared with Congress, the President has “at least” presumptive immunity.
    3. For “unofficial” actions, the President has no immunity.

    Based on what I know about the New York case before Judge Merchan, I don’t think that Trump’s lawyers will be able to demonstrate that his actions at issue were within his “official” duties. As I understand the case, it involved a conspiracy to cover up hush money payments, in which business records were falsified, with the underlying illegal motives for such falsification serving to elevate the offense to a felony. The people involved, I think, were Trump’s personal lawyer and members of the Trump business organization.

    Thanks for this explanation.

     

    I suggest reviewing the second paragraph of the OP. 

    • #4
  5. Not a Banana Republican Coolidge
    Not a Banana Republican
    @Dbroussa

    Jerry Giordano (Arizona Patrio… (View Comment):

    My initial impression is that the immunity defense based on the recent SCOTUS decision will not prevail for Trump. It is proper for Judge Merchan to allow briefing on the issue.

    I’ve reviewed the official syllabus of the SCOTUS decision, but have not read the decision in detail. It’s about what I would expect, dividing the immunity decision into three categories:

    1. For the President’s “core” constitutional duties, in which his power is exclusive rather than shared with Congress, he has absolute immunity.
    2. For the President’s “official” duties, in which his power is shared with Congress, the President has “at least” presumptive immunity.
    3. For “unofficial” actions, the President has no immunity.

    Based on what I know about the New York case before Judge Merchan, I don’t think that Trump’s lawyers will be able to demonstrate that his actions at issue were within his “official” duties. As I understand the case, it involved a conspiracy to cover up hush money payments, in which business records were falsified, with the underlying illegal motives for such falsification serving to elevate the offense to a felony. The people involved, I think, were Trump’s personal lawyer and members of the Trump business organization.

    It is not so much that they are or were official duties, but Trump vs US also made the assertion that the President’s official actions cannot be entered into court as supporting evidence for other potential crimes.  The best example would be that if Trump talked to AG Sessions and asked him his opinion of how he was paying off Cohen for his payoff to Daniels, then those discussions (core duties of the Executive) could not be brought into evidence to show his mens rea and if the jury heard such evidence, then their verdict must be thrown out and a new trial held where that evidence isn’t given to the jury.

    • #5
  6. cdor Member
    cdor
    @cdor

    Jerry Giordano (Arizona Patrio… (View Comment):

    My initial impression is that the immunity defense based on the recent SCOTUS decision will not prevail for Trump. It is proper for Judge Merchan to allow briefing on the issue.

    I’ve reviewed the official syllabus of the SCOTUS decision, but have not read the decision in detail. It’s about what I would expect, dividing the immunity decision into three categories:

    1. For the President’s “core” constitutional duties, in which his power is exclusive rather than shared with Congress, he has absolute immunity.
    2. For the President’s “official” duties, in which his power is shared with Congress, the President has “at least” presumptive immunity.
    3. For “unofficial” actions, the President has no immunity.

    Based on what I know about the New York case before Judge Merchan, I don’t think that Trump’s lawyers will be able to demonstrate that his actions at issue were within his “official” duties. As I understand the case, it involved a conspiracy to cover up hush money payments, in which business records were falsified, with the underlying illegal motives for such falsification serving to elevate the offense to a felony. The people involved, I think, were Trump’s personal lawyer and members of the Trump business organization.

    philo (View Comment):
    This should be a layup for the judge. And it has little effect on the political benefits of the conviction even if vacated. The vacation is a legal matter, not an erasure of history or the accounts of the trial that has been publicized widely. The judge can grant the motion and the charges remain. Bragg’s office gets to present the case to a new jury. The judge can blame the “outrageous” Supreme Court decision for having to start over. The gag order remains in place. Wash, rinse, repeat.

    I suggest reviewing the second paragraph of the OP.

    Indeed:

    “The question raised by the immunity decision is whether certain evidence presented in the trial should have been excluded — conversations with the president that may be covered with absolute or presumptive immunity. If any of the evidence should have been excluded (and at least some of it should have) and it was material to any factual determination of the jury undergirding the verdict, then the motion to vacate the verdict should be granted. “

    I wondered the same thing…what about that trial was a core function of the President’s Constitutional duties? It surprised me to hear about the judge’s delay decision, following Trump’s motion, all based on the immunity decision. But then I read that some of the evidence presented and allowed after the defense objected was the reason for the motion. Yet, I still have no idea what that evidence was.

    • #6
  7. Red Herring Coolidge
    Red Herring
    @EHerring

    Trump will eventually get off because higher courts will step in to stop the kangaroo court.

     

    • #7
  8. kedavis Coolidge
    kedavis
    @kedavis

    Red Herring (View Comment):

    If Trump wins the election, his daughter’s value to the party will be a bust.

    But the customers who gave her money won’t be able to demand refunds.

    • #8
  9. kedavis Coolidge
    kedavis
    @kedavis

    Seems to me the FEC expert, whom Merchan did not allow to testify – but he did allow the prosecutor to include in closing arguments, which is a violation right there – made it clear that something such as “hush money” is not considered a “campaign expense” if there were ANY OTHER CONTEXT in which it might be justified.  And it’s a fact that business people get into Non-Disclosure Agreements all the time, for a variety of reasons.

    • #9
  10. Rodin Member
    Rodin
    @Rodin

    I don’t know that Merchan will grant the motion, or that he will deny the motion on sound legal grounds. What I am suggesting is how useful the Supreme Court’s decision may be if Merchan is shrewd enough to grant the motion. 

    • #10
  11. EODmom Coolidge
    EODmom
    @EODmom

    Rodin (View Comment):

    I don’t know that Merchan will grant the motion, or that he will deny the motion on sound legal grounds. What I am suggesting is how useful the Supreme Court’s decision may be if Merchan is shrewd enough to grant the motion.

    I am cynical enough to think Merchan’s actions will bear little connection to sound legal theory. Rather he will take whatever decision seems to suit the political situation best. On one end of the continuum he could say Phew – dodged that one. I don’t have to sentence this guy to jail and I’ve got my ass covered by SCoUS decision – even if my radical bros don’t like it. It’s not my theory but I’m happy to use it.
    Other end – Damn the torpedoes and Lock him up forever. Some other venue will take over now but damn I feel good. And my radical bros are happy. 

    I don’t read him as a deep and knowledgeable legal theorist. This is the case of his and his family’s life and he’s not likely to ever be able to be this consequential in his job with as big a payoff for his daughter. Or to himself perhaps. 
    However he proceeds, I don’t think it will be theoretically derived. I couldn’t begin to give odds on where on the continuum he will stake his position. 
    Expect a surprise. 

    • #11
  12. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    EODmom (View Comment):

    Rodin (View Comment):

    I don’t know that Merchan will grant the motion, or that he will deny the motion on sound legal grounds. What I am suggesting is how useful the Supreme Court’s decision may be if Merchan is shrewd enough to grant the motion.

    I am cynical enough to think Merchan’s actions will bear little connection to sound legal theory. Rather he will take whatever decision seems to suit the political situation best. On one end of the continuum he could say Phew – dodged that one. I don’t have to sentence this guy to jail and I’ve got my ass covered by SCoUS decision – even if my radical bros don’t like it. It’s not my theory but I’m happy to use it.
    Other end – Damn the torpedoes and Lock him up forever. Some other venue will take over now but damn I feel good. And my radical bros are happy.

    I don’t read him as a deep and knowledgeable legal theorist. This is the case of his and his family’s life and he’s not likely to ever be able to be this consequential in his job with as big a payoff for his daughter. Or to himself perhaps.
    However he proceeds, I don’t think it will be theoretically derived. I couldn’t begin to give odds on where on the continuum he will stake his position.
    Expect a surprise.

    Based on the pictures the man posts on the internet. He’s a narcissist.

    • #12
  13. kedavis Coolidge
    kedavis
    @kedavis

    Bryan G. Stephens (View Comment):

    EODmom (View Comment):

    Rodin (View Comment):

    I don’t know that Merchan will grant the motion, or that he will deny the motion on sound legal grounds. What I am suggesting is how useful the Supreme Court’s decision may be if Merchan is shrewd enough to grant the motion.

    I am cynical enough to think Merchan’s actions will bear little connection to sound legal theory. Rather he will take whatever decision seems to suit the political situation best. On one end of the continuum he could say Phew – dodged that one. I don’t have to sentence this guy to jail and I’ve got my ass covered by SCoUS decision – even if my radical bros don’t like it. It’s not my theory but I’m happy to use it.
    Other end – Damn the torpedoes and Lock him up forever. Some other venue will take over now but damn I feel good. And my radical bros are happy.

    I don’t read him as a deep and knowledgeable legal theorist. This is the case of his and his family’s life and he’s not likely to ever be able to be this consequential in his job with as big a payoff for his daughter. Or to himself perhaps.
    However he proceeds, I don’t think it will be theoretically derived. I couldn’t begin to give odds on where on the continuum he will stake his position.
    Expect a surprise.

    Based on the pictures the man posts on the internet. He’s a narcissist.

    Him, and Engoron too.

    • #13
  14. Steve Fast Member
    Steve Fast
    @SteveFast

    kedavis (View Comment):

    Bryan G. Stephens (View Comment):

    EODmom (View Comment):

    Rodin (View Comment):

    I don’t know that Merchan will grant the motion, or that he will deny the motion on sound legal grounds. What I am suggesting is how useful the Supreme Court’s decision may be if Merchan is shrewd enough to grant the motion.

    I am cynical enough to think Merchan’s actions will bear little connection to sound legal theory. Rather he will take whatever decision seems to suit the political situation best. On one end of the continuum he could say Phew – dodged that one. I don’t have to sentence this guy to jail and I’ve got my ass covered by SCoUS decision – even if my radical bros don’t like it. It’s not my theory but I’m happy to use it.
    Other end – Damn the torpedoes and Lock him up forever. Some other venue will take over now but damn I feel good. And my radical bros are happy.

    I don’t read him as a deep and knowledgeable legal theorist. This is the case of his and his family’s life and he’s not likely to ever be able to be this consequential in his job with as big a payoff for his daughter. Or to himself perhaps.
    However he proceeds, I don’t think it will be theoretically derived. I couldn’t begin to give odds on where on the continuum he will stake his position.
    Expect a surprise.

    Based on the pictures the man posts on the internet. He’s a narcissist.

    Him, and Engoron too.

    Merchan at least is photogenic. Engoron, well, not so much.

    • #14
  15. Steve Fast Member
    Steve Fast
    @SteveFast

    Rodin: Since the judge will have granted a new trial, there is nothing for Trump’s lawyers’ to appeal regarding the old trial. It simply kicks the can down the road without erasing the public’s memory. The public will remember what happened and will react in whatever manner they were already reacting.

    None of Trump’s appeals or criticisms of the trial are in a worse position if Merchan vacates the verdict based on presidential immunity claims. If Trump were to win on any of the other errors at trial, it would only vacate the verdict anyway and result (potentially) in a new trial for Trump.

    The only way Trump gets the charges dismissed (or reduced to a misdemeanor) is if an appeals court finds the obvious absurdity in the way the charges were structured or that they were brought at all. Then the charges themselves could be thrown out. And this appeal is still viable, regardless of whether the presidential immunity claim succeeds.

    • #15
  16. Rodin Member
    Rodin
    @Rodin

    Steve Fast (View Comment):

    Rodin: Since the judge will have granted a new trial, there is nothing for Trump’s lawyers’ to appeal regarding the old trial. It simply kicks the can down the road without erasing the public’s memory. The public will remember what happened and will react in whatever manner they were already reacting.

    None of Trump’s appeals or criticisms of the trial are in a worse position if Merchan vacates the verdict based on presidential immunity claims. If Trump were to win on any of the other errors at trial, it would only vacate the verdict anyway and result (potentially) in a new trial for Trump.

    The only way Trump gets the charges dismissed (or reduced to a misdemeanor) is if an appeals court finds the obvious absurdity in the way the charges were structured or that they were brought at all. Then the charges themselves could be thrown out. And this appeal is still viable, regardless of whether the presidential immunity claim succeeds.

    Your point is well taken, but when the verdict is set aside any appeals become interlocutory and untimely. Recall that Trump’s attorneys made interlocutory appeals before the last trial that did not stop the proceedings. The next set of appeals will be based on new facts or legal issues if they arise or what happens during the new trial. Even if Merchan commits the same errors (other than those “cured” when vacating the first verdict) in the new trial, those appeals will be of either the repetition of errors in the second trial or novel errors in the second trial. 

    • #16
  17. Steve Fast Member
    Steve Fast
    @SteveFast

    Rodin (View Comment):

    Steve Fast (View Comment):

    Rodin: Since the judge will have granted a new trial, there is nothing for Trump’s lawyers’ to appeal regarding the old trial. It simply kicks the can down the road without erasing the public’s memory. The public will remember what happened and will react in whatever manner they were already reacting.

    None of Trump’s appeals or criticisms of the trial are in a worse position if Merchan vacates the verdict based on presidential immunity claims. If Trump were to win on any of the other errors at trial, it would only vacate the verdict anyway and result (potentially) in a new trial for Trump.

    The only way Trump gets the charges dismissed (or reduced to a misdemeanor) is if an appeals court finds the obvious absurdity in the way the charges were structured or that they were brought at all. Then the charges themselves could be thrown out. And this appeal is still viable, regardless of whether the presidential immunity claim succeeds.

    Your point is well taken, but when the verdict is set aside any appeals become interlocutory and untimely. Recall that Trump’s attorneys made interlocutory appeals before the last trial that did not stop the proceedings. The next set of appeals will be based on new facts or legal issues if they arise or what happens during the new trial. Even if Merchan commits the same errors (other than those “cured” when vacating the first verdict) in the new trial, those appeals will be of either the repetition of errors in the second trial or novel errors in the second trial.

    You made it sound in the OP (at least how I understood it) as though Trump would be harmed if the verdict were vacated because of the presidential immunity claims. Maybe I didn’t say it very clearly, but it wouldn’t harm him because it doesn’t matter to Trump whether the verdict is vacated due to presidential immunity or the whole stack of other errors Merchan made. And Trump can still get the charges thrown out completely or reduced to a misdemeanor on appeal or before a new trial.

    • #17
  18. Old Bathos Member
    Old Bathos
    @OldBathos

    Jerry Giordano (Arizona Patrio… (View Comment):

    My initial impression is that the immunity defense based on the recent SCOTUS decision will not prevail for Trump. It is proper for Judge Merchan to allow briefing on the issue.

    I’ve reviewed the official syllabus of the SCOTUS decision, but have not read the decision in detail. It’s about what I would expect, dividing the immunity decision into three categories:

    1. For the President’s “core” constitutional duties, in which his power is exclusive rather than shared with Congress, he has absolute immunity.
    2. For the President’s “official” duties, in which his power is shared with Congress, the President has “at least” presumptive immunity.
    3. For “unofficial” actions, the President has no immunity.

    Based on what I know about the New York case before Judge Merchan, I don’t think that Trump’s lawyers will be able to demonstrate that his actions at issue were within his “official” duties. As I understand the case, it involved a conspiracy to cover up hush money payments, in which business records were falsified, with the underlying illegal motives for such falsification serving to elevate the offense to a felony. The people involved, I think, were Trump’s personal lawyer and members of the Trump business organization.

    I agree with this take.
    Merchan does not care about the law (his jury instructions were a joke) so it would have to be an unambiguous use of executive authority to make the judge even break a sweat to dismiss its applicability.

    • #18
  19. Old Bathos Member
    Old Bathos
    @OldBathos

    I disagree that Merchan merely wants to inhibit the Trump campaign. Like Engeron, Bragg, Smith and Willis he likely seeks to do as much personal injury as possible. He sacrificed the substance and appearance of professional honor and violated his oath of office to assist this political hit. Putting Trump in jail or on probation with an ankle bracelet forbidden to leave NY to campaign or attend the convention is vastly more likely to be his intention.

    • #19
  20. Not a Banana Republican Coolidge
    Not a Banana Republican
    @Dbroussa

    Old Bathos (View Comment):
    I agree with this take.
    Merchan does not care about the law (his jury instructions were a joke) so it would have to be an unambiguous use of executive authority to make the judge even break a sweat to dismiss its applicability

    I think the portion of the opinion about using official actions as evidence for unofficial actions is relevant. For example, in Trump is US they talk specifically about his conversations with the DOJ and say that those cannot be used as evidence for actions he doesn’t have immunity for. Thus in the Bragg trial, if they allowed testimony or evidence that would not be allowed it should require a retrial.   From Trump is US

    And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial. Pp. 30–32

    • #20
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