The trial judge in Trump’s state criminal prosecution uses a legal opinion to peddle partisan Democratic campaign rhetoric.
Yup, I did a double-take on that one, too.
The headline in Donald Trump’s imminent “hush money” trial, which starts in Manhattan in just eleven days, is that Judge Juan Merchan rejected the former president’s eleventh-hour claim of immunity from prosecution and refused to delay the trial until after the Supreme Court decides Trump’s federal immunity claim — which may not happen until June. Merchan’s ruling was not surprising, and his reasoning that Trump waited too long — in violation of state criminal-procedural law — to raise a claim he should have raised a year ago is sound.
What’s not so sound is how Merchan referred to the case in which Trump’s federal immunity claim arose. It is, of course, Biden special counsel Jack Smith’s election-interference prosecution, entitled United States v. Trump, before Judge Tanya Chutkan. For some reason, Merchan did not want to say U.S. v. Trump, or “the federal Trump case” in his short opinion. So he decided to call it Trump’s “Federal Insurrection Matter.”
On page 4, he explains that hereinafter, he’ll describe it as the “Federal Insurrection Matter.” And he proceeds accordingly: “The procedural history of the instant matter, together with the procedural history of the Federal Insurrection Matter, leave no doubt that Defendant was aware of that defense”; “the Defendant moved to dismiss his Federal Insurrection Matter on the grounds of presidential immunity”; and Trump’s pretrial motions in the Manhattan case “were filed a mere six days before he briefed the same issue in his Federal Insurrection Matter.”
Of course, as everyone who has followed the sundry legal proceedings against Trump knows, there is no federal insurrection matter. Indeed, there is no doubt that Merchan knows there is no federal insurrection matter — at least if, as he claims in his opinion, he has studied the procedural history of the case before Judge Chutkan.
It’s not enough to say that Trump has not been charged with insurrection. None of the over 1,350 people prosecuted to date has been charged with insurrection — which has been on the books as a federal crime since the Civil War era, and in its current form (§2383 of the penal code) since 1948. Trump has not been charged with any crime of violence; Smith has alleged two counts of obstruction, a count of fraud, and a civil-rights count, all premised on Trump’s peddling of a bogus legal theory that then-vice president Pence had the authority to invalidate state-certified electoral votes.
The Biden Justice Department investigated Trump for nearly three years. If prosecutors could have made an insurrection case, they would have — they had no greater desire than to tie Trump actionably to the violence of the riot, and inflate that violence into a case of insurrection — on a par with the Civil War, or at least a 9/11-scale atrocity. In the end, they realized they didn’t even have an insurrection case against the actual rioters, and they lacked evidence that Trump was legally complicit in directing the riot. Unlike in politics, in court, you actually have to prove the things you allege.
Moreover, as Merchan undoubtedly knows, the Supreme Court recently ruled that Colorado could not remove Trump from the ballot, as it sought to do based on the insurrection disqualification in Section 3 of the 14th Amendment. The Court reasoned that the disqualification is properly triggered only based on an enforcement mechanism enacted by Congress. The only such mechanism extant in federal law is §2383 — and, to repeat, not only Trump but no one has even been charged with insurrection, much less convicted.
As a legal matter, what Merchan repeatedly describes as the “Federal Insurrection Matter” is a fiction. Where it is all too real, though, is in the realm of partisan Democratic political rhetoric. It has been since the riot. It still is today. Here’s a tweet just last night from President Biden — to whom Judge Merchan made a small-dollar contribution in the race against Trump in 2020, and for whom Merchan’s daughter, a Democratic political operative, has done campaign work:
Don’t tell me you support law enforcement if you can’t condemn what happened on January 6. You can’t be pro-law enforcement and pro-insurrection.
This is partisan political rhetoric. It’s totally fair game for a presidential candidate to use it against his opponent. Politics is an arena of hyperbole, and Trump gives harder than he gets.
But for a trial judge to peddle partisan political rhetoric he knows to be untrue, in a case in which there have been calls for his recusal and the evidence of his political bias continues to mount, is just breathtaking. It calls into question not just Judge Merchan’s impartiality but his judgment.