That Merchan’s decision was predictable doesn’t make it right.
That Merchan’s decision was predictable doesn’t make it right.
T he collision of electoral politics and the administration of justice continues. In fact, it’s combusting. This is the first of two columns on that.
On Tuesday afternoon, Judge Juan Merchan slapped a gag order on Donald Trump. Now, when a conservative commentator uses that expression, “gag order,” to describe a restriction on speech imposed by a Democratic judge on a figure reviled by progressives — and no such figure is more reviled than Trump — there is precious Lawyer Left carping about how the target has not been literally gagged or compelled to stay mum, just restricted in what he may say. Saying “gag order” is almost as bad as saying “bloodbath” or “spying.” So to be clear, I mean “gag order” in the common understanding — limitations have been imposed on the de facto Republican presidential nominee that exceed both what free-expression principles would ordinarily abide and what progressives would tolerate if the defendant were a Democrat courageously speaking truth to power.
The former president had to know the gag order was coming. There is no shortage of self-regard among jurists, and no self-respecting judge would have put up with the former president’s onslaught on Truth Social after Merchan rebuffed his request for a lengthy adjournment of the proceedings and set an imminent trial date — April 15.
That it was predictable doesn’t make it right.
Trump’s Provocative Post
Pasted below is Tuesday morning’s classic Trumpian diatribe, even more feisty than usual with Truth Social’s DJT stock soaring . . . at least as long as memers outpace value-seekers:
Judge Juan Merchan, a very distinguished looking man, is nevertheless a true and certified Trump Hater who suffers from a very serious case of Trump Derangement Syndrome. In other words, he hates me! His daughter is a senior executive at a Super Liberal Democrat firm that works for Adam “Shifty” Schiff, the Democrat National Committee, (Dem)Senate Majority PAC, and even Crooked Joe Biden. He was recently the judge on an unrelated trial of a long term employee, elderly and not in good health. This judge treated him viciously, telling him either you cooperate or I’m putting you in jail for 15 years. He pled, and went to jail for very minor offenses, highly unusual, served 4 months in Rikers, and now they are after him again, this time for allegedly lying (doesn’t look like a lie to me!), and they threatened him again with 15 years if he doesn’t say something bad about “TRUMP.” He is devastated and scared! These COUNTRY DESTROYING SCOUNDRELS & THUGS HAVE NO CASE AGAINST ME. WITCH HUNT!
It’s the usual Rorschach test, of course: red meat for MAGA world, an appalling tissue of lies for Democrats and other obsessive Trump detractors. As for the rest of us, when not rolling our eyes, we can only suppress a chuckle at our peerlessly vain former president’s pause to admire Judge Merchan’s “very distinguished” looks, right before scathing him. Otherwise, it’s par for the Trump course: kinda true, peppered with BS, and a reminder that he is an exhausting, undisciplined, solipsistic drama queen — the qualities we can thank for the Biden presidency.
Political Bias
As ever, this doesn’t mean Trump doesn’t have a point. Merchan is a product of the progressive-Democrat-dominated New York justice system. He should recuse himself from this ridiculous case. But he hasn’t and he won’t, for the same reason that Manhattan’s elected progressive Democratic district attorney, Alvin Bragg, brought the case in the first place, and that New York’s elected progressive Democratic attorney general, Letitia James, brought the similarly deviant civil fraud lawsuit, in which the elected progressive Democratic judge, Arthur Engoron, helped her run up a preposterous $454 million verdict. In New York, being an anti-Trump partisan is not a disqualification; it’s a credential.
Most good judges are smart enough to keep their politics to themselves. Merchan, by contrast, contributed all of $35 to Democratic campaigns in 2020, including $15 to Trump’s opponent, Joe Biden. It would be moronic if this weren’t New York: The paltry sum was not enough to make an iota of difference (as everyone knew would happen, Biden won the Empire State by a nearly two-to-one margin) but it was just enough to show which team Merchan is on; ergo, it was more than enough for a partisan on the other side of a hyper-political case to scream “political bias” — or, as the defendant prefers, “certified Trump Hater.”
Before you tell me how de minimis the donation was (after all, the crack ethics whizzes of the parodical New York justice system have said so!), two things.
First, tell me what Democrats would say if the shoe were on the other foot — I’m sure they’d be cool with it, right? Second, we’re talking about a case in which a progressive prosecutor who treats hardened criminals with kid gloves has taken what is, at most, a single misdemeanor business-records-falsification charge and parsed it into 34 felonies that, in theory, could land Trump — the Democrats’ political archrival — in prison for over a century. If what Bragg has done seems perfectly normal to you, but you regard Trump supporters as hysterical because they deduce bias from a judge’s small-dollar political contribution to politicians who define themselves by their loathing of Trump, maybe you ought to rethink that one.
Trump is also correct that the judge’s daughter is a Democratic political operative. Loren Merchan runs an outfit called Authentic Campaigns, which styles itself as “a digital agency progressives can trust to get the job done right.” Authentic Campaigns promotes top Democrats, including President Biden, Vice President Kamala Harris, Representative Adam Schiff (the Democrats’ Trump-impeachment point-man, who is currently running for the Senate), and many, many others who spend a disproportionate amount of their time railing about how Trump has our democracy hanging by a thread.
Is it any surprise, then, that in his gag order, Merchan only fleetingly mentions that Trump has made “statements against this Court and a family member thereof,” conveniently omitting that what Trump said about said family member is true and germane on the matter of judicial bias? And by the way, don’t you love Merchan’s reference to himself as “this Court” and to Loren as if she were the daughter of the tribunal? Trump gets irritated when judges refer to him as “Mr.” rather than “President” Trump, so he’s no stranger to this narcissistic bent, but in his rant he was clearly talking about the partisanship of two Democrats, not deriding a judicial institution.
In any event, does their partisanship make Merchan and his daughter “deranged” Trump “haters”? Not necessarily. But if you think that’s out of the realm of possibility, you’ve been living under a rock for the last nine years.
A Better Case for Recusing the Judge Than Gagging the Defendant
Furthermore, the question here is not whether Judge Merchan and his daughter are bad people or have done anything illegal — there’s not a shred of evidence of that. The question is whether Merchan ought to be the judge presiding over this case. There is abundant basis to believe that the prosecution against Trump is politicized, and that Bragg would never in a million years have brought such a case against anyone but a partisan enemy (and probably not against any partisan enemy but Trump). Maybe if Trump had shot somebody on Fifth Avenue, a straight-up crime that would cry out for prosecution, the judge’s obvious political loyalties wouldn’t matter. But in this case?
Given the constitutional interest in elections decided by the public after robust debate, rather than by unabashedly partisan prosecutors and court orders, there is a better case here for judicial recusal than gagging a presidential candidate. Trump’s broadsides are obnoxious but not illegal; and to the dread of any competent defense lawyer, the Truth Social bloviating is sure to be a goldmine for Bragg at trial, especially if Trump testifies.
It really doesn’t matter that Merchan believes he can be fair and impartial. I take it as a given that he sincerely does. The issue is the appearance of impropriety — recusal is appropriate even if actual bias has not been proven. But put that aside for a moment. I wonder if Judge Merchan might ask himself: If he were representing Trump, would he agree to let someone with Merchan’s background — with his close family ties to Trump’s most committed, voluble political rivals — serve on the jury? In any event, Judge Merchan’s steely determination to keep the case when there are manifest reasons to doubt his impartiality does not inspire confidence.
Trump’s Weisselberg Distortions
Where Trump can’t help but distort the record is in his remarks pertaining to Allen Weisselberg, his “long term employee” — i.e., the Trump Organization’s CFO — who, Trump says, is “elderly” (Weisselberg is 76, almost two years younger than Trump) and “not in good health.”
Weirdly, Trump describes the prior indictment and guilty plea of Weisselberg, over which Merchan presided, as “unrelated.” Weisselberg was convicted of minor tax felonies in Bragg’s investigation of the Trump Organization, and his admissions were key to the subsequent conviction on analogous charges of the Organization, but not of Trump himself. More to the point, there is no doubt that the soft-on-crime Bragg went hard at Weisselberg because he was pressuring him to implicate Trump in crimes — including what Bragg maintains are offenses committed in L’affaire Stormy. (Bragg’s falsification-of-business-records theory is that Trump’s reimbursement of his then-lawyer, Michael Cohen, who had paid the hush money to porn star Stormy Daniels, was booked as ongoing legal fees in 2017, when it was really the repayment of a 2016 debt. As CFO, Weisselberg was allegedly involved in how the Trump Organization booked this expense.)
Bragg is the paragon progressive prosecutor: In obeisance to the “systemic racism” canard, he goes easy on real criminals; and in the service of social-justice preening, he has no compunction about using state power and legal processes as punitive weapons against political foes. Hence, although New York typically coddles criminals from arrest through disposition (often by alternatives to prosecution), Bragg slammed Weisselberg with 15 felony tax charges. The DA then pushed Merchan to send Weisselberg to jail even though he had testified in a manner that helped Bragg convict the Trump Organization.
Weisselberg resisted the pressure to turn on Trump, so Bragg has indicted him yet again, this time for perjury committed at the state’s recent civil fraud trial against Trump (in which Weisselberg was also a defendant). As I opined here, the perjury prosecution is likely a shot across the bow to discourage other Trump sympathizers from testifying, rather than a renewed effort to squeeze Weisselberg into inculpating Trump. (Even if Weisselberg suddenly offered incriminating information about Trump, it wouldn’t be worth much after years of strenuously denying that he had such information.)
All that said, there is no support for Trump’s allegation that Judge Merchan told Weisselberg, “either you cooperate or I’m putting you in jail for 15 years.” Merchan accepted a plea agreement in connection with which Weisselberg did not implicate Trump and was put in jail for four months. To be sure, this was excessive under the circumstances, especially in light of New York norms; but it was nothing close to 15 years.
As for the new perjury case, Merchan appears to be uninvolved in it. (It is before Judge Laurie Peterson.) Bragg agreed to dispose of the case in exchange for a sentence of five months, not 15 years as Trump claimed in the Truth Social rant. And Trump’s description of the perjury allegations as Weisselberg’s “allegedly lying (doesn’t look like a lie to me)” is pathetic. Weisselberg admitted during his guilty plea that he lied in his civil-trial testimony about his participation in the overvaluation of Trump’s Manhattan triplex apartment — unsurprising since the evidence is overwhelming that the valuation was ludicrous and that Weisselberg was up to his eyeballs in touting it.
A Criminal Trial Becomes Political Combat
By making such hyperbolic assertions, Trump was methodically daring Merchan to gag him. It’s a calculated anti-lawfare strategy: the conceit that the best defense is tireless offense.
Just as in the civil fraud case, in which Judge Engoron found him liable before the trial even started, Trump has to figure he’s going down in flames in the criminal trial. Bragg’s case is a partisan farce, but Merchan’s recent opinion rejecting Trump’s pretrial motions buys the DA’s theories wholesale. The likelihood is that, with a Manhattan jury and Merchan presiding, Trump is going to be convicted; and with Bragg having spliced a single act into 34 counts, the number of convictions is likely to be closer to 34 than zero.
Consequently, this has become political combat for Trump. With the handwriting on the wall, he is setting the table for how his presidential campaign will handle a guilty verdict. If he gets a hung jury, or a miraculous clean sweep of acquittals, it will be a great coup, no matter what. But the survival of his White House bid hinges on convincing most of the public that the trial was an illegitimate partisan vendetta — a “witch hunt.” With the trial now imminent, he is going on offense. If the judge holds him in contempt, that can only help.
Trump is not executing a legal strategy. No competent lawyer would advise a client looking at 34 felony charges to send the judge into orbit — even making a public issue of the judge’s daughter. Not at any time, let alone with the trial just days away.
The gag order was inevitable. But does that make it right? We’ll talk about that in the next column.