Manhattan Criminal Courts Building by Americasroof is licensed under CC-BY-3.0
PRESIDENT-ELECT TRUMP SHOULD NOT APPEAR AT JUDGE MERCHAN’S “PUBLIC INTEREST” SENTENCING ON JANUARY 10th
INTRODUCTION
If you thought that Judge Engeron, who presided over Letitia James’s Stalinesque civil case against the Trump Organization, was a partisan party to pure politics, Judge Merchan is the lawfare all-star. A contributor to Biden’s campaign, and clearly ethically subject to recusal on his own motion, he ignored these principles and stayed on to preside over the worst violation of due process in recent memory. Both James and Bragg, who should forfeit their law licenses, campaigned on essentially the equivalent of “we will find the crime so we can give Trump some time.” Bragg cloaked his case in the execrable personage of Michael Cohen as his chief witness and presented a void Federal election crime in a cobbled together mess tethered to a vague and statute barred New York misdemeanor. More on that below.
On Friday, Judge Merchan declared that it was in the “public interest” to sentence Trump before his inauguration and that he would not impose jail or a fine. This was the bait for Trump to take to accept 34 baseless felony convictions and raise his hand for the oath of Office on January 20th as a “convicted felon.’’ Rachel Maddow would be screaming in ecstasy and shouting, “I’ll have what she is having.” Trump should not only boycott the proceedings but also instruct his attorneys—now poised to be Deputy U.S. Attorney General’s to immediately seek an appeal on Judge Merchan’s denial of Trump’s motion to dismiss the case on the grounds that Bragg utilized evidence that was subject to complete or partial immunity. Merchan continues to carry the water for the DNC and has taken this sham to its final determination. That should be an appeal on the immunity issue, which will take well past January 20th, and the case will certainly die a death in the United States Supreme Court.I hope. It never should have happened.
THE BIDEN WHITE HOUSE—FULFILLING BIDEN’S DEMENTIA-LADEN SLIP THAT “WE WON’T LET IT HAPPEN”- REFERRING TO TRUMP’S CANDIDACY- DISPATCHED A DOJ DEPUTY TO CREATE FRANKENSTEIN
In December of 2022, around the time Biden let this plan slip, the New York Times reported that Manhattan DA Alvin Bragg “hired” Matthew Colangelo, a top official at the United States Justice Department, to “assist” in the Trump state criminal case. Colangelo was hired on to Justice after leading the Letitia James civil case against Trump and his Organization that led to an unconstitutional Four Hundred Million Dollar fine levied by Judge Engoron and which is currently on appeal. So apparently, Mr. Colangelo, who probably objected to the fact that the FEC did not refer a criminal prosecution of Trump for the same conduct at the federal level, wanted a shot under New York law in a place where Trump would never get a fair jury. Just think if he got Trump and Biden or Harris won; he would certainly be the Attorney General. The only problem was he had to deal with New York law.He also knew that Trump’s Non-Disclosure Agreement with Stormy Daniels had occurred years before, was presumptively a First Amendment privilege, and was statute barred. The statute I speak of is Section 17-152 of the New York Election Law, which provides that:
“…any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of conspiracy to promote or prevent an election.”
This mess of an enactment may as well have been crafted by Kamala Harris because it is the legislative equivalent of a word salad, but it is the best Mr. Colangelo had, and he was not to be deterred. They tied this to another misdemeanor involving false business records, which would become a felony if the object was to form an intent to commit “another crime.” What crime? Well, Judge Merchan gave the jury three options, unheard of in a world of due process wherein a unanimous verdict would be required. The already declined FEDERAL election law violation, a fraud business record option, as well as a tax crime. He charged the jury as follows:
“In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following: (1) violations of the Federal Election Campaign Act, otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.”
Yes, multiple choice. Absurd. To gild the lily, Judge Merchan would not allow a former FEC official to testify regarding why this was NOT a federal election law violation. Frankenstein was created- Cohen and Trump decided to buy someone’s silence, a practice as old as Rome as well as a First Amendment right and common business practice. This “unlawful” attempt to silence Daniels was to further the “unlawful” act of “promoting or preventing” an election of any person to public office. The entire case rests on a vague and unenforceable statute that should have been erased from the law years ago.
“UNLAWFUL” IS VAGUE AS IT DRAWS IN NON-CRIMINAL CONDUCT TO CREATE A CRIME—THERE ARE MANY “UNLAWFUL” ACTS THAT ARE NOT CRIMINAL.
It is my hope that this issue was preserved if the matter does go to a full appeal apart from just the immunity issues. In the seedy world of election primaries, any number of persons can “conspire” to prevent a person’s election. I thought that was the object. Colangelo and Bragg, with Merchan’s assistance, certainly conspired to violate due process and take Trump out of the primaries. In other instances, suppose two campaign workers float a slanderous rumor about a candidate that is a civil wrong but not a criminal one—New York made that criminal conduct.Taking down a campaign sign, if not independently made a crime, would fit here if two or more persons decided to do so. Many unlawful acts as defined in any dictionary are not criminal but may violate rules or regulations that are not in and of themselves criminal.
SINCE THE FOUNDING AND CERTAINLY AFTER THE FOURTEENTH AMENDMENT, WE ARE A NATION OF DUE PROCESS, AND THIS CASE REEKS OF AUTHORITARIANISM AND ARBITRARINESS FOR THE SOLE END OF “GETTING TRUMP.”
For decades, the United States Supreme Court has been a protector of due process by striking down enactments like the New York law that can be used arbitrarily to deprive someone of their freedom. It sets us apart from the “find the man and I’ll find the crime” nations. The rules are simple, and they are as follows.
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on anad hocand subjective basis, with the attendant dangers of arbitrary and discriminatory application.Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,”it “operates to inhibit the exercise of those freedoms. ” Uncertain meanings inevitably lead citizens to ” ‘steer far wider of the unlawful zone’ …than if the boundaries of the forbidden areas were clearly marked.”
The United States Supreme Court will bristle at this cobbled-together abomination, and it is my hope that it will get there in some form. Of course, there was an arbitrary and discriminatory application of a vague law—a true Bidenesque “work-around”—and I am sure there are very few prosecutions in New York history over this statute. It is New York after all. The difficulties for Trump’s team are as follows:
- If they appear for Merchan’s’ circus on Jan 10, Trump will be an official felon but will have the full right to appeal ALL issues. The Democrats will crow that a convicted felon is being sworn in as President and who knows what Congress will do with that?
- If he seeks an appeal on just the immunity issues, the case will linger for his presidency if not earlier dismissed on that issue;
- If he simply doesn’t show up, but his counsel does, will Merchan issue a warrant for a president-elect’s arrest? Would the Secret Service allow anyone to get near Trump?
CONCLUSION
The conventional wisdom in this game of chess is to seek an immediate appeal on the immunity issues which are so sprinkled into this case that it should all go out the window. This will delay the case, even if an appeal is somehow denied by the first-level appellate court, until after the 20th because Trump’s team will go up the full rung of state and federal appeal options. If I have a crystal ball to read the case, it will not be around in 2028 for any kind of sentencing, and Alvin Bragg will be out of Office and working in a legal clinic in Brooklyn.
Mike Imprevento
January 6th, 2025
