GREGG JARRETT: Bragg and Merchan's vindictive lawfare strategy against Trump failed. Can this go on till 2029?
A competent and objective judge would have tossed the Trump indictment in the garbage the moment it was filed in April 2023. It was a transparently politicized prosecution.
New York Judge Juan Merchan abruptly canceled the scheduled November 26 sentencing of President-elect Donald Trump arising from his convictions in May on falsifying business records.
The judge’s order on Tuesday came as Manhattan District Attorney Alvin Bragg notified the court that his office does not oppose further delays that could defer any sentencing "until after the end of the defendant’s upcoming presidential term" in 2029. At the same time, the DA opposes any attempt to dismiss the case.
Merchan seems flummoxed. He resembles Charlie Brown —wishy-washy. His dithering and vacillation are exceeded only by his disregard for the law.
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He has had more than four months to consider the pending defense motion to dismiss the case based on the Supreme Court’s decision on July 1 that Trump had broad and presumptive immunity from prosecution for official acts as president.
At trial, Bragg wrongly relied on testimony and documents that surely constituted "official acts." It was critical to the prosecution’s case and tainted the jury. It should never have been countenanced by the judge who knew that the high court was considering that very issue.
On that basis alone, the conviction should be overturned. But the defense also argues that Trump’s reelection merits dismissal because both a president and a president-elect are constitutionally immune from any criminal process, either state or federal.
What Merchan will do next is a parlor game.
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Much of his current quandary is a result of a prosecution that should never have been brought. Depending on the judge’s ultimate disposition, the matter could wind its way through the appellate courts for years to come. By itself, the conviction stands a very good chance of being overturned.
Bragg’s case against Trump was always incoherent, principally because it is not a crime to conceal a perfectly legal non-disclosure agreement. But that did not deter him from whipping out his bag of magic tricks.
In a screwball sleight of hand, the DA contorted the law by resurrecting dead business record misdemeanors and transmuting them into phantom election felonies that he falsely portrayed as unduly influencing the 2016 presidential contest.
Never mind that the transactions happened several months after the election. Ignore the fact that Bragg, as a local prosecutor, had no jurisdiction to enforce federal campaign laws. Forget that the payments to Stormy Daniels did not even qualify as campaign contributions under any statute or regulation.
A competent and objective judge would have tossed the Trump indictment in the garbage the moment it was filed in April 2023. On its face, it was patently deficient, if not absurd, and a transparently politicized prosecution.
But Bragg’s shameless legerdemain did not bother Judge Juan Merchan in the least. He was all in. His honor merrily went along with the hocus-pocus and joined the charade as co-prosecutor during the ensuing trial.
Let’s review.
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Forsaking ethical standards in the Code of Judicial Conduct, Merchan refused to recuse himself despite a disqualifying conflict of interest involving his own improper campaign donations and a daughter who appeared to have a financial interest in the outcome.
In a Draconian edict, the judge unconstitutionally silenced Trump with a gag order, thereby constraining the Republican nominee from defending himself in the court of public opinion in advance of the 2024 election.
Convicted perjurer Michael Cohen was allowed free rein to spin his fantastic tales on the witness stand. Daniels gratuitously waxed in raunchy detail about an alleged sexual encounter that had no bearing whatsoever on whether records were purportedly manipulated.
There’s more. The judge precluded the defense from calling an important expert witness to testify that no election laws were ever broken even though Cohen —an expert on nothing— was permitted to tell the jury that they were.
Throughout the trial, a "Heinz 57 Variety" of irrelevant, immaterial and prejudicial evidence was deemed admissible by Merchan. His anti-Trump bias was pronounced. Reversible errors became routine.
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The quintessential miscarriage of justice occurred when Merchan instructed the jury that it need not agree unanimously on each element of the criminal offenses. That aberrant ruling obliterated U.S. Supreme Court precedent.
The inexorable consequence is that Trump was deprived of the right to properly defend himself from the alleged underlying crimes because Bragg’s prosecutors never fully disclosed which ones were supposedly violated. They remain hidden still, along with the precise vote among jurors.
This wasn’t a fair trial. It was a farce. Trump’s constitutionally protected due process rights were shredded on a daily basis.
As I noted in a recent column, the 2024 presidential election outcome gives both prosecutor and judge a convenient off-ramp to terminate this case before enduring the embarrassment of being overturned by higher courts.
Their vindictive lawfare strategy failed at the ballot box. Americans were not fooled by Democrats who weaponized the law for political gain.
Make no mistake, Bragg and Merchan will never acknowledge their misfeasance. But they have the opportunity to end this misbegotten case now.
Will they do it? If the past is prologue, no.
