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Merchan’s Get Out of Jail Card

Rodin
@Rodin
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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.

This post was promoted to the Main Feed at the recommendation of Ricochet's members.

Discussion (20)

  • 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.

  • Banned Member@BryanGStephens
    ReplyingtoJerry Giordano (Arizona Patriot)

    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.

  • Banned Member@philo
    ReplyingtoBryan G. Stephens

    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.

    Bryan G. Stephens (View Comment):

    Thanks for this explanation.

    I suggest reviewing the second paragraph of the OP.

  • Not a Banana Republican@Dbroussa
    ReplyingtoJerry Giordano (Arizona Patriot)

    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.

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