To the surprise of no one, Judge Juan Merchan has yet again denied former President Donald Trump’s motion that the judge recuse himself. I am speaking, of course, about the case in which Manhattan’s elected progressive Democratic district Attorney, Alvin Bragg, is prosecuting Trump. In early June, a jury found the former president and current GOP presidential nominee guilty on 34 counts of business-records falsification.
It is not just that Judge Merchan had previously denied the recusal motion. The judge has signaled that, come hell or high water, he intends to sentence Trump on September 18.
If you’re keeping score, that would be two days after early voting in the 2024 election begins in Pennsylvania.
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The Trump defense team has been trying to stave off sentencing. And the lawyers have what, in a normal case, would be real ammunition.
On July 1, the U.S. Supreme Court held that presidents (including former presidents) are (a) presumptively immune from criminal prosecution for any official acts taken as president, and (b) absolutely immune if the official acts are core constitutional duties of the chief executive. The Court instructed that this immunity extends not only to charges but to evidence. That means prosecutors are not just barred from alleging official presidential acts as crimes; they are further prohibited from even using such acts as proof offered to establish other crimes.
There is no denying that Bragg’s prosecutors used some of Trump’s official acts to prove their case. Indeed, they called as witnesses two of Trump’s White House staffers.
Unsurprisingly then, Trump’s lawyers moved post-trial to have the guilty verdicts thrown out based on the high court’s immunity ruling. Further, they again argued that Merchan should recuse himself. On that score, they claimed the lucrative political work Merchan’s daughter has done for Vice President Kamala Harris should be seen as more significant now that Harris has replaced President Biden as Trump’s Democratic opponent in the upcoming election.
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On Tuesday, Merchan denied the recusal motion. He had signaled his intention to do so in a letter to the parties last week. He also said he plans to rule on Trump’s immunity claim by August 16. Most importantly, though, Merchan admonished the parties to prepare for the court to move ahead with the imposition of sentence on September 18. He instructed the lawyers to submit promptly any arguments they intend to make on that subject.
If we may read the tea leaves, Merchan has already decided that he will deny Trump’s immunity motion. There is, moreover, a high likelihood that he will impose a prison sentence against Trump right after that.
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By the time he’d issued his letter last week, Merchan had had weeks to mull over the Supreme Court’s immunity decision and Team Trump’s subsequent brief arguing that the guilty verdicts should be tossed out. He told the parties to get ready for sentencing anyway. Obviously, if Merchan had any intention of vacating the verdicts, or of recusing himself, he would not have stuck to the sentencing date.
I suspect that Merchan will rationalize that Trump (a) was not charged based on official presidential acts, and (b) would have been convicted even if Bragg’s prosecutors had not introduced arguably immunized evidence. Such a ruling might be wrong, especially on the latter point (at trial, prosecutors described some of the testimony from Trump staffers as "devastating"); but Merchan made so many outrageous rulings in the case that it would be foolish to expect him to change course now.
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In fact, my own view is that, even more than the Supreme Court’s immunity decision, another of its late-term rulings will bolster Trump’s eventual appeal – Erlinger v. United States. There, the Court reaffirmed that in criminal cases, important proof elements affecting the potential sentence must be found unanimously by the jury. Merchan, to the contrary, denied Trump the right to a unanimous verdict on the supposed crime (conspiracy to influence the election by illegal conduct) that Bragg alleged Trump was trying to conceal by falsifying his business records. That crime is what turned a misdemeanor into a felony, and what allowed Bragg to get around the two-year misdemeanor statute of limitations.
But this brings us to the main point. The New York prosecution of Trump was politics not justice. That’s why we call it "lawfare." The prosecutors and judge are not concerned about whether convictions ultimately get thrown out on appeal. And it’s not like Merchan is actually going to put Trump in prison; it is virtually certain that Trump will get bail pending appeal, so Merchan can appear to impose a stiff incarceration sentence without any real incarceration – at least for now, and probably ever.
The objective here is to enable Vice President Harris and the media-Democratic complex to label Trump "a convicted felon sentenced to prison" just weeks before Election Day, at a time when Americans will already have started voting in many states, not least the potentially decisive Pennsylvania battleground.
Prepare for Merchan to deny Trump’s immunity claim … and strap in for sentencing on September 18.
