This past week, Juan Merchan continued his relentless assault on the Constitution and Country by openly defying the Supreme Court’s precedent, which reaffirmed and strengthened the doctrine of presidential immunity, from this past year’s Trump decision. In denying President Trump’s motion to dismiss the case, Merchan has only prolonged the lawfare against him, further deepening the wound to New York’s legal system in the process. The Merchan case – which the mainstream press has (improperly) called the “hush money case” (ignoring that hush money payments are not illegal, and have never been illegal, by a public official or private citizen in the history of American law) has been a complete mockery of justice from its inception. As extensively documented previously in this newsletter, even before the trial, Merchan has been disregarding all legal norms, procedures, and rules – in the pursuit of a twisted, monomaniacal vendetta against a presidential candidate and now president-elect of the United States.
He ignored due process of law – and the regulations governing evidence and professional ethics – by bringing this case, which implicated federal issues that were already cleared by the Federal Election Commission, in state court. Second, he denied President Trump’s attorneys their right to move to dismiss evidence – and the theory of the case – on Immunity (and other privileges, like attorney client and executive privilege) grounds. President Trump’s attorneys had to navigate a legal landmine, including pending oral arguments for the Supreme Court’s Immunity decision, which commenced during the course of the Merchan trial. The ultimate outcome on that Immunity case was not known until after the trial had ended. The Trump decision was officially handed down by the Supreme Court in early July; the Merchan trial wrapped up in late May. Thus, there was absolutely no way to know how the Supreme Court would rule, for one, and the scope of the Immunity decision, for two, as the oral arguments for the Merchan trial were being made. Thus, a generalized approach to Immunity — one that did not stake one’s bets entirely on an unforeseeable and as yet unrealized outcome, was in order. That Merchan now apparently gripes that President Trump’s attorneys were not clairvoyant enough to read the minds of the Justices and see into the future, is what appears to be the basis of his complaint in the first few pages of the latest court order handed down this week.
Merchan, of course, does not care in the slightest about his slipshod reasoning and schizophrenic logic. Rather than be sympathetic to unknowables that President Trump’s attorneys had to deal with at the time as a matter of course, the rogue judge has doubled down on his invective. In this latest court order, Merchan complained that the President’s legal team did not move to dismiss their case on time, a ridiculous claim in light of the above facts, which made these moves virtually impossible to make, given the cloud of uncertainty over the nature and scope of the Immunity decision.
Ultimately, the Supreme Court did uphold a robust and constitutionally consistent framework for presidential immunity: but that was not known until July, months after trial ended. In the meantime, Merchan made a point in this latest order that the President waited until March 7th to move to preclude evidence on such grounds, arguing that it was too late and should therefore not be given its due credence. Never mind the fact that such a motion was made over two weeks before the scheduled trial date of March 25th. Furthermore, it was not the first time Presidential Immunity was raised: it had months before been invoked by the President’s legal team and detailed at great length in an omnibus motion filed with the court in September of the previous year!
The procedural quibbling by Merchan – exhibited at the start of his shameful 41-page order from the past week – is symptomatic of a much deeper betrayal committed against the public trust, and the duplicity with which he has carried out this sham proceeding from start to finish. Merchan has casted President Trump’s attorneys in the vilest of terms, scolding them for all sorts of trumped-up problems – like bringing out a witness, in Robert Costello, who embarrassed Merchan with excoriating testimony that admonished the Judge for the miscarriage of justice taking place in his courtroom. He did this while flouting the rules governing judicial ethics with absolute impunity: indeed, as discussed ad nauseam, his own family members, including a daughter and wife, profited directly from the trial by working for Democrat candidates who fundraised off the lawfare against President Trump.
The financial windfall that immediate family members of Merchan had to gain from this trial mirrored the abuses committed by Fani Willis and Nathan Wade in Georgia, the district attorney-prosecutor lovers, who joined forces to similarly attempt to take down President Trump — in what thankfully was a failed endeavor — and his allies through lawfare. There, Wade, the prosecutor, benefitted from a smorgasbord of illegal perks: from being assigned to the case in the first place, despite lacking the legal experience or competence to prosecute anything more than a traffic court violation, to being given an absurdly elevated salary, to having used his office to take soirees to the Caribbean and other places, where he and Willis, his boss-district attorney-paramour, enjoyed intimate time together, on the taxpayer’s dime, to plot their hatchet job against the would-be 47th President.
The old expression the fish rots from the head down proves true in each of these cases. Accordingly, because corruption animated each one of these cases, the lawfare against President Trump, which from the start was based entirely on politics, not deference to the law (as every single one of the accusations turned out to be utterly devoid of merit) was bound to fail. As each legal domino tumbled down one by one – from Bragg to Willis to Jack Smith – they vindicated the fundamental claim made by President Trump from the very beginning: that no such wrongdoing, criminal or otherwise, ever occurred – it was always politics, politics, politics! The Left has weaponized the justice system, colluding between federal and state actors, in coordination with Joe Biden’s Department of Justice, presided over by Merrick Garland, to engage in the ultimate form of election interference. The chickens have now come home to roost.
When that widespread effort came crashing down on November 5th, with the President’s landslide victory, so too did we observe each one of the cases. The Merchan case, whose sentencing date was originally suspended after President Trump had won, now hangs on for dear life. The idea of course is to keep the proceeding alive for as long as possible. Doing so offers a legalistic pebble in the shoe of Donald Trump’s presidency, one that Merchan – in his delusions of grandeur – believes can potentially sabotage the President, politically if not legally, by casting a long shadow upon his administration – replicating the equally phony “Russia, Russia, Russia” farce in the first term. In his twisted mind, Merchan – backed by Alvin Bragg and Letitia James – sincerely believes that he can keep this case on a slow boil for the remainder of President Trump’s time in public life. The goal for him, at this stage, is that once the President steps down from his duties in January of 2029, then Merchan can resume his Marxist power trip – and give the President the sentencing Merchan believes he deserves. For what reason? Naturally, for winning two elections that he so apparently — vehemently — disagreed with, accomplishing success that he could never even approach in his wildest dreams.
Hence explains Merchan’s obstinance to drop this case, which gave this disgraced judge the public notoriety he never would have otherwise gotten in his whole professional career. Merchan continues to demonstrate his woeful lack of legal knowledge by prosecuting issues on which both he and his court have absolutely no jurisdiction to rule. In addition to the federal election law claim (the putative basis for this case, which, again, received a clearance by the FEC years ago), Merchan has seen fit in this latest chapter of this seemingly endless miscarriage of justice saga to also ignore the Supreme Court’s own ruling.
Where the High Court reaffirmed – and fortified – the doctrine of Immunity, Merchan nitpicked portions of the decision he preferred, including non-binding concurrent opinions filed by other justices, to argue that Immunity, in fact, did not apply to this case. He said Immunity did not apply because the actions did not fall within the outer perimeter of the President’s official duties, which is the doctrine of Immunity as articulated by the Supreme Court. Yet, the evidence presented in Merchan’s show trial overwhelmingly did meet that criterion: many of the key witnesses were direct aids of the President of the United States — such as Hope Hicks and Madeleine Westerhout — when the alleged actions which brought forth this lawsuit took place.
Moreover, so much other evidence – from the privileged communications President Trump made with his then-attorney, Michael Cohen, to the social media postings the President made, while serving as president, about Stormy Daniels, Michael Cohen, and so many other key people and events related to this proceeding – decisively fell within the ambit of the Supreme Court’s Immunity doctrine. Obviously so.
The Supreme Court notably took a conservative position towards Immunity, carefully weighing the facts before it, and not swiftly abusing its authority by rendering judgments about what acts qualified under the doctrine of Immunity willy-nilly. The point of this more conservative approach was twofold: one, recognizing that Immunity is a sweeping doctrine, most presidential acts fall within its broad stroke; it is thus inappropriate for any court, let alone the Supreme Court, to adjudge certain acts with a fine-tooth comb and disqualify them in so arbitrary a manner under the doctrine. If any acts do not fall under the legal guarantee, significant deference must be made by courts to the doctrine of Immunity – hence the second reason for the conservative approach. The Supreme Court’s doctrine is that most acts fall within the scope of Immunity; where ambiguity exists, the presumption is for Immunity, not against it – always. Otherwise, the principles of separation of powers would not stand: the Executive Branch would be engulfed by the other two branches of government — to say nothing of the administrative bureaucracy — reducing the presidency to a ceremonial role.
Merchan, by sharp contrast, takes the opposite approach of the Supreme Court, which upheld those robust protections. He seems to think Immunity is “optional.” He claims that it is basically a doctrine without teeth: somehow, conveniently, every single act that fell within the ambit of Presidential duties in the Merchan case – and there was quite a lot of qualifying activity – did not qualify under the doctrine? Make that make sense! And that does not even touch upon the numerous other legal privileges and immunities at work: executive privilege, attorney-client privilege, deliberative process privilege, etc., all of which were likewise operative here, and should, under the court’s own time-tested principles and rules, result in dismissal of the case based on the myriad breaches of important constitutional protections made all throughout this charade of a trial.
The New York lawfare against President Trump resulted in some of the most egregious violations of the constitutional rights of any defendant ever committed in a public tribunal, and that is without exaggeration. Due process of law, that foundational cornerstone of American justice which dictates the rights of criminal defendants that must be preserved – particularly when a strong, countervailing prejudice by society is in effect – was ignored with shameless abandonment. The President never had the ability to challenge a grossly incompetent judge and tribunal. In the meantime, the Judge ran roughshod over the rules of evidence and canons of judicial ethics with the zeal of a runaway despot.
The elements of each alleged crime should have been systematically fleshed out, allowing jurors – however irreparably prejudiced – to assess and determine for themselves whether the evidence met the high burden of proof – beyond a reasonable doubt – required for conviction. That never occurred. Nor was the President given the right to bring expert witnesses or raise objections sufficient to defeat the smears and character assassination attempts by the prosecution’s coterie of witnesses. In every instance, his constitutional rights – including his First Amendment right to criticize unfair aspects of the proceeding, of which there were too many to count – were ignored, stomped on, or ridiculed.
Now, Merchan and co., hope to use what little power they have remaining, post November 5th, as a sword to thwart the President’s agenda, because they disagree with his policies – and, evidently, loath the Constitution. What Merchan represents is antithetical to the core meaning of Justice. The kangaroo show trial should offend any lawyer of decency – no matter his political affiliation – and not necessarily out of devotion to Donald Trump, who was just elected to be the nation’s forty-seventh president of the United States. But the disrepute – and long-lasting damage – such chicanery will render unto the New York legal system in general. The rights of every defendant are in jeopardy if this disgraceful precedent continues to be endorsed by the state’s lead prosecutor and attorney general.
Ultimately, this tragedy is not about Donald Trump, but about how our society views Justice, the pillar of freedom and democracy, particularly within the context of American constitutional governance. If Justice is so cavalierly disregarded; if Merchan’s example of abusing its core tenets is granted with no reprisal, then our society deserves neither Justice nor Freedom, but the tyranny that inevitably overtakes the rule of men who abdicate the mantle of self-government.
Paul Ingrassia is a Constitutional Scholar; Communications Director of the NCLU; a two-time Claremont Fellow, and is on the Board of Advisors of the New York Young Republican Club and the Italian American Civil Rights League. He writes a widely read Substack that is regularly posted on Truth Social by President Trump. Follow him on X @PaulIngrassia, Substack, Truth Social, Instagram, and Rumble.
The opinions expressed by columnists are their own and do not necessarily represent the views of AMAC or AMAC Action.
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