A Profile In Courage

With so many terrible examples of how not to take on Trump, Judge Juan Merchan in Manhattan shines a light on the correct way forward.

Judge Juan Merchan, photo by Ahmed Gaber, New York Times

The ordinary can become quite extraordinary when resisting Trump and MAGA extremism.

On the one hand, it is quite ordinary for a judge, having sat through a lengthy criminal trial, to rule against a motion to dismiss the indictment and vacate the jury verdict long after it has been rendered. And Manhattan judge Juan Merchan did just that on Monday night. In a 41-page ruling, he denied Trump’s motion to dismiss after finding that his criminal conduct, along with all evidence of it introduced by prosecutors, pertained to unofficial acts by him and therefore isn’t protected by presidential immunity.

At the same time, we must also note how extraordinary it is for any judge to render a decision against a former president in a criminal matter, especially one that keeps in place a guilty verdict as he prepares to take office for a second term.

Judge Merchan concluded that Trump remains subject to prosecution for criminal conduct outside the scope of his official duties, and as you’ll see below, he didn’t make it easy for Trump on appeal. He stood with his back straight to the president-elect, and in this age of media cowardice and shrinking guardrails, that’s also no small thing.

The law and the facts

Let’s briefly paint the legal landscape behind Judge Merchan’s decision. Earlier this year, the Supreme Court stunned most legal observers by granting Trump broad immunity from criminal prosecution over any acts that fell within his official duties as president. If you recall, this even included ordering Seal Team 6 to assassinate a political opponent. So long as it was deemed to be within the president’s powers, Trump got a get-of-out-jail-free card.

That’s admittedly bonkers. But in the spirit of damage control, the question then became what, if any, limits are there to this dangerous new rule? One clear limitation is what the scope of his official duties would actually wind up including. And here is where District Attorney Alvin Bragg made his stand and Judge Merchan agreed.

Trump was charged with falsifying business records to cover up hush money payments to adult film star Stormy Daniels. He schemed with Michael Cohen and his CFO Allen Weisselberg to create a false paper trail to keep news of the affair from the public just weeks before the 2016 election. All of this happened before Trump was president, so Merchan found that these were logically not part of the president’s broad immunity.

But then there’s a gray area, as there often is. What about discussions Trump had while president with his underlings, such as Hope Hicks, about the scheme? Wouldn’t those somehow be covered by his presidential immunity?

Merchan reasoned that the conversations Trump had as president with others about crimes that were unofficial conduct at the time they occurred would not be covered by immunity. “The People’s use of these acts as evidence of the decidedly personal acts of falsifying business records poses no danger of intrusion on the authority and function of the executive branch,” Merchan wrote.

Belt and suspenders

If you read the ruling, you’ll soon see that Merchan also managed a “belt and suspenders” approach to his ruling to insulate it further from attack on appeal. By this I mean, if the belt happens to give out, the suspenders still hold up his ruling.

Merchan found that even if evidence, such as Hope Hicks’s testimony, was excluded under presidential immunity because it comprised evidence covered by “official acts,” the inclusion of that evidence by the prosecution and presentation of it to the jury was still “harmless error.” That’s because there was so much other evidence introduced in the case to support the guilty verdict.

Merchan presided over the entirety of the trial and is well positioned to make such a determination. Reversing him on this judgment call of “harmless error” is going to be difficult for Trump’s lawyers to pull off.

There are other cool and nerdy aspects of his decision that are more technical in nature, such as whether Trump’s team actually properly preserved the right to challenge things like Hicks’s testimony in the first case. These are additional legal hurdles Trump’s team will have to overcome on appeal, so hats off to Merchan for not making it easy for them.

Up the appellate ladder

Trump undoubtedly will appeal the denial of his motion to dismiss the indictment and vacate the jury verdict. He doesn’t want the stain of a 34-count felony guilty verdict to stand while he is president.

So how is that appeal likely to go? At least until it reaches the Supreme Court, where who knows what could happen? Merchan’s ruling will be aided by other decisions that already have reached a similar conclusion about whether Trump’s actions were official in nature.

For example, when Trump tried to remove the case to federal court, he argued that he was entitled to do so because a federal officer may have his case heard in federal court when acting within the scope of his official duties. Not so in this case, ruled the federal court, which kicked the case back to the state court in Manhattan:

The evidence overwhelmingly suggests that the matter was a purely a personal item of the President—a cover-up of an embarrassing event. Hush money paid to an adult film star is not related to a President's official acts. It does not reflect in any way the color of the President's official duties.

Ouch.

Trump appealed this ruling to the Second Circuit, but on the day his brief was due to be filed, he voluntarily withdrew his appeal. It seemed his lawyers knew they would lose but had filed the appeal in order to eat up more time on the calendar.

Whether Judge Merchan’s ruling ultimately will withstand appellate review likely depends on how far SCOTUS is willing to stretch the idea of what an “official act” means. But even this High Court would be hard pressed to make the case that it should include all conversations about earlier unofficial criminal acts just because they took place in the White House or while Trump was president. That’s a big tail wagging the dog scenario.

Finally, I do need to caution that there are other motions to dismiss filed by Trump’s lawyers on grounds that the judge has not yet addressed. Chief among these is the argument that the case must be dismissed now that Trump has won the presidency, based on principles of federal law supremacy.

Let’s put a pin in that question and save it for another day. It’s true that Trump could still theoretically succeed in dismissing the case before Judge Merchan on other grounds, just not on the most obvious and dangerous ground of presidential immunity. But personally, I suspect that if Merchan were inclined to dismiss the whole case on other grounds, he wouldn’t have bothered to write a whole opinion about why he wasn’t going to on immunity grounds.

Standing up to Trump

Judge Merchan is no stranger to Trump’s dangerous rhetoric and the threats to safety that can result from it. Remember that Merchan already had to issue a gag order to prevent Trump from threatening court staff, the prosecutor, and even Merchan’s own daughter. He knew when authoring this ruling that his refusal to dismiss a 34 count guilty verdict against Trump would place himself, and those near him, in danger from the MAGA mob.

Yet Merchan braved these treacherous waters with poise and professionalism. He wasn’t intimidated. Rather, he calmly walked through the law and the facts as he would with any other case. In the end, he rendered the first opinion ever on the question of the scope of presidential immunity following the shocking, sweeping grant by the Supreme Court in June.

In so doing he showed what true resistance looks like. It means upholding the rule of law and not capitulating in advance. It certainly does not mean heading to Mar-a-Lago to kiss Trump’s ring or funding this inauguration to the tune of millions. While tech bro CEOs and media companies debase themselves in the name of shareholder value and to avoid Trump’s wrath, Judge Merchan quietly did the opposite, raising both his gavel and his middle finger to Trump.

Take note, America. That is how it’s done.