All posts tagged "juan merchan"

Criminologist explains why remaining Trump cases may never go to trial

Over the course of the past year, the relationships between law, politics and justice in our contemporary democratic republic have been torn open. We’ve all witnessed firsthand how each of the criminal indictments of former President Donald Trump have struggled to be adjudicated in their respective jurisdictions.

In effect, these criminal cases have all demonstrated just how arbitrary and capricious the rule of law can be when subject to the decisions of unprincipled and unscrupulous jurists of the highest courts in the land. Or, more pointedly: When legal conflicts are resolved by corrupt political hacks trying to pass themselves off as neutral umpires calling balls and strikes as they interpret constitutional law, we’re in for some serious civic trouble.

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More than a year removed from the last of Trump’s four criminal indictments, only one of these has gone to trial.

One might argue that in the interim, Trump’s criminal justice and substantive crimes have been hijacked from the American people by the Supreme Court, which this year granted Trump significant presidential immunity rights. You be the judge of whether the high court’s ruling came down for the primary purpose of making Trump’s alleged criminal wrongdoing disappear.

In fact, it is now quite likely that Trump’s three pending criminal cases and straightforward violations of the criminal law will never go to trial.

Say even one or more of these remaining cases eventually finds their way to trial. And say that Trump is found guilty of felonies.

That may very well not be the final resolution of these matters as we have learned from Trump’s Manhattan hush money case. This is because an anti-democratic alliance of Boss Trump, the GOP and the MAGA majority of the Supreme Court has worked to ensure that justice for Trump is delayed indefinitely, no matter the evidence against him and no matter what a jury of his peers determines.

Anyone who believes no president is above the law should recoil: The Supreme Court’s ruling in favor of presidential immunity — and against the Constitution in order to protect the insurrectionary and treasonous behavior of Trump — is to date the most radical expression of weaponizing the law this nation has seen in decades. Or beyond.

Where do Trump’s cases stand?

At this point in time, only the first of these criminal indictments has gone the distance and was decided by a jury of Trump’s peers — or so we thought.

After a New York jury this past spring issued guilty verdicts on each of Trump’s 34 falsification of business records counts — each stemming from his interfering in the 2016 presidential election by paying hush money to a porn star with whom he allegedly had an affair — I more than suggested that “Justice delayed is not always justice denied.”

Boy was I wrong.

At the end of the 2023-24 Supreme Court term, the MAGA majority of justices had ruled to the surprise of virtually every knowledgeable person on Earth that Trump enjoyed presidential immunity from criminal prosecution whether he committed his offenses during, after or even before his presidency.

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Who knew? Certainly not the authors of the Declaration of Independence or the fathers of the U.S. Constitution – the only “originalists” if there ever were any.

As a result of this “unconstitutional” decision, Trump’s scheduled sentencing for July 11 was delayed until September 18 — after the earliest of early voting ballots will have already been cast in the 2024 presidential election.

In the wake of the Supreme Court ruling on presidential immunity, Trump’s “lawyers are urging the judge in the New York hush money case to overturn his conviction and dismiss the case.” In addition to other legal arguments, Manhattan District Attorney Alvin Bragg has responded that the immunity ruling has “no bearing on this prosecution” because the lawsuit was about conduct and events that occurred before Trump became president.

Even if Trump’s lawyers are correct about this new law after the crime, the case should still be immune from the decision. Just as a person cannot face criminal punishment except for an act that was criminalized by law before the act was performed – the principle known as “no crime without a law” — a person should not be exonerated or exempt from criminal punishment because of a “new law after the crime.”

Judge Juan Merchan has told the parties that he will issue his decision by Sept. 6. I am confident that he will rule against Trump and that sentencing should be on schedule for Sept. 18. However, I am also confident that Trump’s legal team will appeal that decision. And, even if that appeal does not delay sentencing, Trump's attorneys will file additional appeals to overturn the sentence — prison time remains a possibility, even if it’s unlikely — as well as to toss the case out for a second time.

A courtroom sketch by the artist Jarvaland of former President Donald Trump and Justice Juan Merchan at the former president's criminal hush money trial. (Courtesy of Jarvaland)

Meanwhile, in the election interference case in the District of Columbia, Judge Tanya Chutkan will soon be reclaiming jurisdiction to assess whether the charges brought by the special counsel Jack Smith fall within or outside of the new guidelines of presidential immunity.

Of course, if Chutkan rules in favor of the prosecution, Trump will appeal that decision as well.

Based on Supreme Court Justice Clarence Thomas’ separate opinion in the immunity ruling and her concerns about the legality of the special counsel’s appointment, Judge Aileen Cannon on July 15 dismissed the “slam dunk” classified documents case in Florida.

Smith has appealed this ruling to the 11th Circuit Court of Appeals and has not yet asked the 11th Circuit to expedite this case. Thus, in all likelihood, a hearing before Cannon will not occur before sometime in the middle of October. Some time afterwards she will undoubtedly rule in favor of Trump. Then, the special counsel will appeal her decision.

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And so it goes: “Procedural justice” at work delaying and stymying “substantive justice.”

None of these appeals will ultimately be resolved for months if not years after the November election. The same can also be assumed should Trump file an appeal to toss out the Fulton County Georgia RICO case — this time for prosecutorial immunity rather than as he has previously done for the violation of his First Amendment rights.

So we now find ourselves in a situation where long before justice delayed is no longer justice denied, the American voters will decide.

As former U.S. prosecutor for the Southern District of Alabama and distinguished professor at the University of Alabama School of Law, Joyce Vance, has written: “Trump now faces prosecutors both in the courtroom and in the court of public opinion, where voters will decide whether to send a felon” — or, instead, a prosecutor in presumptive Democratic nominee Kamala Harris — to the White House.

In a nation that has seen the value of the rule of law diminished by the MAGA Supreme Court, the choice seems rather clear.

Gregg Barak is an emeritus professor of criminology and criminal justice at Eastern Michigan University and the author of several books on the crimes of the powerful, including Criminology on Trump (2022) and its 2024 sequel, Indicting the 45th President: Boss Trump, the GOP, and What We Can Do About the Threat to American Democracy.

Trump trial reaches its end game

NEW YORK — The historic trial of Donald Trump enters its final act Tuesday, with closing arguments to the jury who must then decide whether to hand down the first ever criminal conviction of a former U.S. president.

Less than six months before American voters choose whether to return Trump to the White House, the stakes riding on the verdict are hard to overstate — for the 77-year-old personally, but also for the country as a whole.

Trump is accused of falsifying business records to buy the silence of porn star Stormy Daniels about a 2006 sexual encounter between them that could have damaged his 2016 presidential bid.

If convicted, he faces up to four years in prison on each of 34 counts, but legal experts say that as a first-time offender he is unlikely to get jail time.

Crucially, a conviction would not bar Trump from appearing on the ballot in November as the Republican presidential challenger to Democrat Joe Biden.

It has taken nearly five weeks, the testimony of more than 20 witnesses and a few courtroom fireworks to reach closing arguments — the last chance for the prosecution and defense to impress their case on the anonymous, 12-member jury.

As expected, Trump chose not to testify in his defense — a move that would have exposed him to unnecessary legal jeopardy and forensic cross-examination.

For a man who has always prided himself on being in charge and in control, the role of silent, passive defendant did not come easily.

At times it has been downright excruciating, especially when Trump was forced to sit and listen while Daniels recounted their alleged encounter in sometimes graphic detail.

Speaking to reporters before and after each day in court, Trump launched regular tirades against Judge Juan Merchan — calling him "corrupt" and a "tyrant"— and condemned the whole trial as "election interference" by Democrats intent on keeping him off the campaign trail.

The politics of the case were in full view in the final days when a coterie of leading Republicans — including several vice-presidential hopefuls — came to the court and stood behind Trump in a gesture of support as he spoke to the press.

In all, he was cited 10 times for contempt of court and fined $10,000 by Merchan for failing to heed a gag order prohibiting him from publicly attacking witnesses, the jury, court staff or their relatives.

The judge has said he expects closing arguments to take up all of Tuesday.

He will then give his final instructions to the jury, who will likely begin their deliberations on Wednesday.

To return a guilty or not guilty verdict requires unanimity. Just one holdout means a hung jury and a mistrial.

Other cases

Aside from Daniels, the key prosecution witness was Michael Cohen, Trump's former "fixer" turned bitter foe who arranged the $130,000 hush money payment.

Walking jurors through the reasoning behind the payments, Cohen said they were made "to ensure that the story would not come out, would not affect Mr Trump's chances of becoming president of the United States."

Trump's defense team devoted most of their questioning trying to discredit Cohen, recalling that he had admitted lying to Congress and spent time in prison for tax fraud.

The defense called only two witnesses of their own before resting.

In addition to the New York case, Trump has been indicted in Washington and Georgia on charges of conspiring to overturn the results of the 2020 election.

He also faces charges in Florida of allegedly mishandling classified documents after leaving the White House.

None of those trials are expected to take place before the November election.

A criminologist explains why Trump’s Manhattan trial is the biggest threat to his freedom

Donald Trump has always been terrified by the thought of going to prison. At the same time, his fear of imprisonment has always been mitigated by his Houdini-like ability to evade the administration of criminal justice.

Ergo, Trump’s myriad repeated motions — legitimate and illegitimate — to delay or dismiss his four criminal trials from ever coming to fruition.

Most notable is whether Trump is immune from criminal prosecution on charges of trying to overturn the results of the 2020 election. Although the oral arguments before the Supreme Court are to be heard on April 25, we probably will not have the answer until the end of the current session in late June or early July.

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These tactics have always been motivated by Trump’s shamelessness and dogged determination to keep his never-ending lawlessness and scamming alive. In order to do so, he must keep his derriere unincarcerated and/or return to the White House as the 47th president of the United States.

Trump has also been more afraid of the Manhattan criminal case than the other criminal cases slated for courtrooms in Florida, Georgia and Washington, D.C.

This is because Trump has correctly or incorrectly believed that, in those cases, there would likely be one juror or more out of 12 that would emerge to prevent guilty verdicts — remember: they must be unanimous — from materializing.

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Up until now and before the selection of the criminal jury begins on Monday in The People of the State of New York vs. the former POTUS, did Trump ever have to seriously confront the reality of criminal imprisonment for one day, let alone, for the rest of his life.

According to New York law, if convicted of the 34 criminal counts each subject to as many as four years of imprisonment to be served consecutively, Trump could be looking at as many as 136 years of captivity.

Realistically, that would never happen to Trump — or anyone else for this type of election interference, campaign corruption and financial criminality. For any other average person convicted on all of the counts, the sentence would probably be from two to four years, served concurrently.

But I suspect that Judge Juan Merchan, who was recently sued by Trump over his handling of the case, will at maximum impose a sentence of home confinement rather than any formal type of criminal incarceration.

This penal leniency in sentencing will come from a judge who has endured months of Boss Trump railing against him and repeatedly attacking his daughter. This unseemly behavior finally resulted in a “gag order” from the judge to protect his offspring. It also resulted in another frivolous denied motion to an appellate court by one very desperate Trump hoping for a stay or looking for any kind of delay.

Manhattan Supreme Court Justice Juan Merchan in 2011. Marc A. Hermann/New York Daily News/TNS

My reasoning about Merchan’s leniency is twofold:

First, Merchan — like Judge Scott McAfee in the Fulton County, Ga., case against Trump and U.S. District Judge Tanya Chutkan overseeing the Jan. 6 case in D.C. — have all been adjudicating fairly. They have also been bending over backwards on behalf of Trump for a variety of reasons.

(This is in stark contrast to Judge Aileen Cannon overseeing the Florida stolen classified documents case who has been acting unfairly on behalf of Trump and with malice against the prosecution.)

Second, unlike Trump’s three other criminal cases I cannot imagine any judge sentencing a former president to prison for the Manhattan crimes.

But home confinement — however luxurious — would nevertheless mean Trump loses his freedom.

Up to now most thinking people have supposed that the Manhattan trial would be the least significant of the four criminal trials Trump is facing as he runs for president here in 2024.

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Compared to the three other trials – two about Trump’s effort to overturn the results of the 2020 presidential election and one for allegedly stealing classified documents and obstructing justice – the charges, on balance, don’t seem as legally or politically fraught.

However, the significance of the Manhattan criminal trial both legally and politically is about to make history.

There are several reasons for this.

For openers: time.

The misleading “hush money”-labeled criminal case has become not only the first but possibly the only criminal trial of Trump to be resolved before people start voting, which in some parts of the country will be in September.

Unlike the other three criminal matters that occurred during or after his presidency, the issues at play in the Manhattan trial occurred in 2016. They took place just weeks before the 2016 election and immediately after the release of the Access Hollywood tape, which revealed Trump making lewd and obscene comments about women.

Although the former president’s falsification of business documents and his fraudulent payments for services rendered continued like monthly clockwork during the first year of the Trump administration.

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Importantly, unlike the three other criminal indictments that were “speaking indictments,” or went beyond the elements of the charges, the Manhattan indictment following New York law did not. It only provided the minimal identification or listing of the 34 counts against Trump.

For example, without the lengthy and detailed indictments laying out the evidence in greater detail, most Americans do not understand why the misdemeanor crimes of paying off one porn star and one playboy bunny to keep them silent about their sexual liaisons with Trump became felony crimes.

Similarly, this case also involves election interference and campaign fraud – the kind that may have helped Trump get elected president in the first place, in 2016. In other words, this case is not merely about falsifying business documents and tax records.

Trump’s interference in the 2016 presidential election was not limited to the burying of negative information that at the time would have been detrimental to his campaign victory, but it also includes evidence of Trump paying his then-”fixer” Michael Cohen to hire an IT firm to rig early CNBC and Drudge polls to favor Trump in 2015 — and then stiffing RedFinch Solutions $50,000 for its services rendered.

Not unlike the House Select Committee’s public hearings on January 6, where all the witnesses who testified against Trump were from the former president’s inner circles, the same will essentially be the case in the Manhattan trial. At this trial, we can expect several of the witnesses testifying against Trump to be part of the conspiracy to cover up his sexual affairs from wife Melania as well as the general public — a general public that may have voted differently had they known Trump was cheating on the future first lady with an adult film actress.

Unlike the House Select Committee hearings, which were televised but paid attention to by about 23 percent of the electorate and changed few opinions about Trump’s culpability, the untelevised criminal trial in Manhattan will be followed much more closely by most Americans.. And whether convicted by a jury of his peers or set free by a hung jury, Trump stands to suffer significantly from some six weeks of gavel-to-gavel news coverage of his criminal behavior.

As the Manhattan trial is about to get underway, there does seem to be some poetic justice at play. Just as District Attorney Alvin Bragg was the first to bring a criminal indictment against a former president of the United States he has also become the first law enforcement official to criminally prosecute the 45th president of the Untied States.

It is also worth noting that Bragg had no problem with any of the other criminal cases going ahead of his trial as he has always regarded the 34 felony criminal counts in the Manhattan case as ordinary or garden variety white-collar crimes. Rather than the more serious crimes involved in Trump’s three other criminal prosecutions.

On the one hand, I am feeling good that people will finally learn all about election interference and the “catch and kill” scheme that is at the heart of the Manhattan trial. Not to mention the collaboration between Trump and the National Enquirer news organization.

On the other hand, I am disappointed that Bragg’s team of prosecutors had not investigated deeper, or if they had done so, that they had decided not to bring additional counts against Trump involving another type of election interference.

Specifically, I am referring to candidate Trump’s collaboration with the National Enquirer to manufacture scathing front-page stories about two of Trump’s most competitive opponents in the 2016 presidential race. Namely, Republican Sen. Ted Cruz and former Secretary of State and Democratic candidate Hillary Clinton.

To recap where we are with respect to legal accountability and the administration of criminal justice for the 2024 presumptive nomination for president:

In the short term, as the Manhattan trial finally begins, the Liar-in-Chief and his lawyers' efforts to delay, disrupt, and discredit one of the four criminal cases against Trump have at long last been exhausted.

In the longer term, at least for now, Trump and the GOP’s repetitive attacks to delegitimize the justice system and rule of law as a whole, as well as their efforts to spread fear throughout those institutions tasked with holding Trump accountable for his anti-democratic behavior, are still alive and unwell.

Hopefully, the Manhattan trial will begin to turn the tide against Republican lawlessness, corruption and authoritarianism.

Gregg Barak is an emeritus professor of criminology and criminal justice and the author of several books on the crimes of the powerful, including Criminology on Trump (2022) and its 2024 sequel, Indicting the 45th President: Boss Trump, the GOP, and What We Can Do About the Threat to American Democracy.