Merchan subtweets John Roberts ahead of Trump's sentencing
The chief justice thinks intimidating judges is bad — some of the time.
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Last Friday, Justice Juan Merchan rejected Trump’s bid to dismiss his criminal case. Barring intervention from a higher court, the president-elect will be sentenced on January 10 for 34 felony counts of creating a false business record.
Trump responded with his usual screaming tantrum, even though the judge promised he’d impose no jail time.
Trump’s Truth Social meltdown continued through last weekend. But in fact Justice Merchan’s opinion is just as great a rebuke to Chief Justice John Roberts and his conservative brethren as it is to Trump himself.
Before we get to Merchan’s subtweet, though, let’s revisit how we got here.
Merchan refuses to cave
In March 2023, the Manhattan district attorney charged Trump with creating fraudulent invoices and checks to hide the 2016 hush money payment to Stormy Daniels. A jury found him guilty in May 2024 on all counts, but in July, the Supreme Court’s conservatives invented a presidential immunity so broad that it not only allows the sitting president to commit crimes, but bars the use of official acts as evidence against him. Trump then moved to overturn the New York convictions, arguing that the trial was tainted by testimony from two White House aides, along with some tweets and a financial disclosure made during his presidency.
In December, Justice Merchan rejected Trump’s immunity claims, finding that, if the underlying hush money scheme was personal conduct, then discussing it with his presidential aides was also unofficial. That leaves only the sentencing, which Trump is desperate to avoid. He successfully postponed it three times, including in September because it would appear “political” to pronounce judgment on the eve of the election. Then in November, Trump demanded that the verdict be vacated and sentencing canceled entirely, thanks to his status as president-elect.
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No retroactive immunity
Trump’s argument, articulated by his attorneys Todd Blanche and Emil Bove (soon to be the second and third in command at the Justice Department), is that presidential immunity attaches during the presidential transition — a time when the defendant is definitionally not the president. They cite the Constitution’s Supremacy Clause as well as the Presidential Transition Act, but functionally this motion is a demand that the case go away because he won the election.
“On November 5, 2024, the American people gave President Trump a powerful national mandate to Make America Great Again, and to address the harms perpetrated by the Biden-Harris Administration, including their unsuccessful lawfare using DANY, Smith, and others,” the lawyers bloviated, adding that “the Supremacy Clause adds additional urgency to the need for immediate dismissal because DANY has created the nightmare scenario where a local, biased prosecutor is seeking to interfere with the outcome of the national election by encumbering the people’s choice of a leader with unacceptable burdens and distractions.”
Justice Merchan had little patience for these histrionics.
“Indeed, one of Defendant's most frequent arguments is that this Court should defer to the will of the citizenry who recently re-elected him to the Office of the Executive, notwithstanding an actual guilty verdict in this case,” he wrote. “Thus, whatever stigma that might have existed, will most certainly not interfere with Defendant's ability to carry out his duties — both as President-elect and as the sitting President.”
And Merchan took exceptional umbrage at Blanche and Bove’s inflammatory language, which mirrored the defendant’s conduct both in and out of court.
“Counsel has resorted to language, indeed rhetoric, that has no place in legal pleadings” he scolded. “For example, countless times in their Motion to Dismiss, counsel accuses the prosecution and this Court of engaging in ‘unlawful’ and ‘unconstitutional’ conduct.”
Blanche and Bove have consistently referred to the investigation as unlawful, accused the prosecution and court of misconduct, and accused the district attorney of colluding with the Biden-Harris administration to harm Trump. This is flagrantly inappropriate, particularly when, as here, multiple appeals courts rejected Trump’s demand that Merchan recuse himself and that the case be dismissed for “bias.” Indeed, the Supreme Court refused to lift the gag order blocking Trump from attacking the judge’s family members.
These ad hominem attacks are a blatant attempt to intimidate the court, backed up by Trump’s constant raving on social media, and the judge was right to call them out: “Dangerous rhetoric is not a welcome form of argument and will have no impact on how the Court renders this or any other Decision.”
In one sense, Justice Merchan was playing it straight when he quoted Chief Justice John Roberts’s end of year report decrying “intimidation” of the judiciary.
“Disappointed litigants rage at judicial decisions on the Internet, urging readers to send a message to the judge. They falsely claim that the judge had it in for them because of the judge’s race, gender, or ethnicity — or the political party of the President who appointed the judge,” Roberts lectured, adding that “public officials, too, regrettably have engaged in recent attempts to intimidate judges — for example, suggesting political bias in the judge’s adverse rulings without a credible basis for such allegations.”
But Roberts’s report is a shockingly craven document, likening legitimate criticism of the Court to intimidation. It ignores the reasons for widespread public distrust of the Supreme Court, most glaringly the immunity ruling that allowed Trump to escape accountability for his crimes. And it finger-wags at lawyers and public officials for not defending the judiciary’s sacred honor. Meanwhile, the chief justice blithely ignores the once and future president, who levels shocking abuse at judges, doxxes their family members, and ensures a torrent of death threats for judges, court staff, and prosecutors.
Judge Tanya Chutkan, who presided over the federal election interference case faced racist death threats. Justice Arthur Engoron, who adjudicated his civil fraud trial, endured multiple bomb threats at his home, even as Trump attacked his Engoron’s wife, son, and law clerk by name. And Justice Merchan faced an avalanche of harassment by Trump’s supporters, who also went after the judge’s child.
But state judges, who lack the protection of federal marshals, are apparently beneath the chief justice’s notice. Indeed, the only jurist Roberts could muster explicit sympathy for was Trump sycophant Judge Aileen Cannon, “whose decisions in a high-profile case” — dismissing the entirety of the stolen documents case on the novel and ahistorical theory that special counsels are un-legal — “prompted an elected official to call for her impeachment.” (Cannon did Trump another huge solid on Tuesday by temporarily blocking the release of Special Counsel Jack Smith’s final report.)
And so it’s impossible to read Justice Merchan’s “complete agreement with Chief Justice Roberts's views on this subject” as anything other than a subtweet of the person who has done the most to empower Trump, the greatest intimidator of the American judiciary in history.
“Defendant's disdain for the Third Branch of government, whether state or federal, in New York or elsewhere, is a matter of public record,” Justice Merchan chided. “Indeed, 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.”
He noted Trump’s habit of getting sanctioned for contempt of court, quoting Judge Donald Middlebrooks, who dismissed the garbage RICO suit Trump filed against Hillary Clinton and fined him and his lawyers a million dollars.
“Mr. Trump is using the courts as a stage set for political theater and grievance,” Judge Middlebrooks wrote. “This behavior interferes with the ability of the judiciary to perform its constitutional duty.”
Justice Merchan’s order is a remarkable condemnation of the chief justice’s screed, which treats legitimate criticism of the Supreme Court’s rulings as violence, while disregarding the actual violence encouraged by Trump and his cronies. And while the Supreme Court’s conservatives take the position that with great power comes no responsibility, Justice Merchan counters that failing to hold public figures to account is what delegitimizes the judiciary.
It was the premeditated and continuous deception by the leader of the free world that is the gravamen of this offense. 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 constitute a disproportionate result and cause immeasurable damage to the citizenry's confidence in the Rule of Law.
So, now what?
Merchan worked hard to Trump-proof his ruling. He telegraphed in advance that the sentence will be functionally nothing, with no jail time to impair the presidency or the presidential transition. But Trump made clear during his bonkers Mar-a-Lago news conference on Tuesday that he’s big mad anyway, at one point referring to “New York judges” who are “so nasty, so horrible” as well as “vicious” and “vile.” (Watch below.)
Trump is also allowed appear remotely for Friday’s hearing, so any disruption or inconvenience will be minimal.
Nonetheless, Trump filed an immediate motion purporting to invoke an automatic stay based on president-elect immunity — something his lawyers just invented. Naturally, Blanche and Bove ignored the admonition to tone down the rhetoric, calling the case “flawed from the very beginning, centered around the wrongful actions and false claims of a disgraced, disbarred serial-liar former attorney, violated President Trump’s due process rights, and had no merit” and accusing the judge of conducting the case “without proper process.”
Justice Merchan denied the stay, after which they filed a marginally less incendiary petition with the New York’s Appellate Division. During a hearing Tuesday afternoon, Associate Justice Ellen Gesmer tossed the bid for emergency relief, observing to Blanche and Bove that the timing here is entirely a result of “a series of motions made by your client.”
Trump will doubtless appeal to the the New York Court of Appeals, and after that, the Supreme Court. But two days is a pretty narrow window to get relief, and so we’ll probably get to see all four of Chief Justice Roberts’s “four areas of illegitimate activity that, in my view, do threaten the independence of judges on which the rule of law depends: (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments" from the future president. As his final act of intimidation, Trump may simply refuse to show up on Friday morning, even virtually.
If Trump fails to show, in defiance of a court order, it won’t forestall the sentencing. As New York litigator Mitchell Epner pointed out, the sentencing will still go ahead, whether Trump shows up or not. But it will illustrate clearly how little care the once and future Intimidator in Chief cares about the rule of law.
At the end of the day, Merchan held the line, and the Supreme Court did not. Whatever comes next, up to and including criminal prosecution of Trump’s enemies, is on them.
That’s it for today
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Thanks for reading.
Excellent commentary, as usual. It is hard to believe that we are hanging on to the rule of law by such a gossamer thread. Merchan is David against the hideous Goliath that is Trump. After the avalanche of lies, invective, corruption, and treason on public view for all these years, we are holding on to hope for a (paltry) sentencing in the only case that could produce a conviction. Although he has never been acquitted of any crime nor won one of his ridiculous nuisance lawsuits, Trump manages to intimidate his way into never being held accountable. And now we have the worst to come. I suspect that if he dropped dead from a stroke or heart attack in full public view, his minions would find some way to blame it on “the radical Left.”
WILL NO ONE STOP THIS FASCIST LUNATIC????? I hope to God that at the very least our military will refuse to invade Greenland and Mexico and Canada.