In the matter of Donald J. Trump, the criminal justice system failed egregiously to hold the once and future president accountable. It’s almost inconceivable that Trump will spend a single day behind bars. To the contrary, New York State Supreme Court Justice Juan Merchan suggested that, given Trump’s imminent return to the White House, he plans enter a no-strings-attached sentence of “unconditional discharge.”
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Still, to
read Merchan’s decision last week
upholding Trump’s felony conviction is to see welcome glimmers of accountability for Trump’s underlying conduct and his behavior as the prosecution proceeded. The consequences may be mostly symbolic and rhetorical, but symbolism and rhetoric matter. Most important is that the jury verdict stands; Trump will pursue his appeal, but, 10 days after the scheduled sentencing, he will be the first president to enter the White House as a felon. And Merchan dismissed Trump’s preposterous claims that the presidential immunity declared by the Supreme Court somehow extends to Trump as president-elect and prevents him from being sentenced, especially since it was Trump himself who sought the postponement.
I have been skeptical of the legal theory under which Trump was prosecuted for hiding his hush money payments to porn star Stormy Daniels, the subject of the New York case brought by District Attorney Alvin Bragg. But there is no question about the offensiveness — and seriousness — of Trump’s underlying conduct, seeking to keep the relationship hidden from voters during the 2016 campaign.
Trump’s lawyers argued that the case should be dismissed because, among other things, his alleged conduct paled in comparison to homicide, sexual assault and other crimes prosecuted in New York. Merchan wasn’t having any of that.
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“Seriousness and harm are not measured solely by the level of violence inflicted or the extent of financial harm. Seriousness can be gauged by considering the significance of the act under the unique circumstances of the case, as well as by the harm to society as a whole,” Merchan wrote.
The jury, he noted,
unanimously found Trump guilty of 34 counts of falsifying business records in pursuit of a conspiracy to win the presidential election through unlawful means. “It was the premediated and continuous deception by the leader of the free world that is the gravamen of this offense,” he wrote. “To vacate this verdict on the grounds that the charges are insufficiently serious given the position Defendant once held, and is about to assume again, would … cause immeasurable damage to the citizenry’s confidence in the Rule of Law.”
These words stand. They cannot be wiped out — no matter how many times Trump cries witch hunt about the charges against him.
And speaking of Trump’s rhetoric, Merchan had some choice words on that, again worth heeding and valuable to have on the record. Trump, contending that his “contributions to this City and the Nation are too numerous to count,” asserted that his public service and character should weigh as important factors in dismissing the charges.
Merchan wasn’t buying — and he turned Trump’s claims of exemplary character on their head.
“Defendant has gone to great lengths to broadcast on social media and other forums his lack of respect for judges, juries, grand juries and the justice system as a whole. In the case at bar, despite repeated admonitions, this Court was left with no choice but to find the Defendant guilty of 10 counts of Contempt.”
His conclusion? “Defendant’s character and history vis-a-vis the Rule of Law and the Third Branch of government must be analyzed under this factor in direct relation to the result he seeks, and in that vein, it does not weigh in his favor.”
Merchan took a well-deserved swipe at Trump’s attorneys, too — invoking the year-end warning by U.S. Chief Justice John G. Roberts Jr. about attacks on judges. Merchan noted past instances in which “counsel has come dangerously close to crossing the line of zealous representation and ... professional advocacy.”
He added: “Counsel has resorted to language, indeed rhetoric, that has no place in legal pleadings. For example, countless times in their Motion to Dismiss, counsel accuses the prosecution and this Court of engaging in ‘unlawful’ and ‘unconstitutional’ conduct. These same terms are also peppered throughout Defendant’s Reply. Those words, by definition, mean ‘criminally punishable.’ Viewed in full context and mindful of the parties to this action, such arguments, in the broader picture, have the potential to create a chilling effect on the Third Branch of government.”
These words matter, not least because they are not directed at any ordinary lawyers. Trump has
tapped his lawyers in the New York case to be top lieutenants at the Justice Department: Todd Blanche as deputy attorney general, the No. 2 official in charge of day-to-day operations, and Emil Bove for Blanche’s top deputy.
Will these lawyers moderate their zeal on Trump’s behalf when their client is the United States, not Trump personally? We can hope Merchan’s words have a beneficial chilling effect, even if the record suggests a more dismal outcome.
