The tension at the heart of Judge Merchan’s very good latest ruling

Today, Judge Juan Merchan continued his valiant effort to properly conduct a state criminal trial and post-trial proceedings in the face of Donald Trump’s complete disregard for rule of law and a U.S. Supreme Court that has shown its inclination to wholly protect Trump from federal criminal prosecution. He has ruled that sentencing of Trump for his 34 felony convictions for his violation of New York criminal law will go forward and before Inauguration Day. Judge Merchan’s opinion in support of his ruling is both a fine piece of judicial craft and yet another piece of evidence that the combination of the Roberts Court and Donald Trump distorts judicial practice in every jurisdiction.

Merchan is a long-time trial court judge. He is intimately familiar with and practiced at the twin pillars of the job: (1) respect for statutes and binding higher court precedent and (2) the power conferred on the trial court judge to run just proceedings within the constraints and guidance of (1). Trial judges rely on the legitimacy and judicial professionalism of appellate courts to prevent (1) from making (2) impossible. If higher courts cannot be expected themselves to respect state constitutions and laws, the federal constitution and laws, and past judicial precedent, lower court justices cannot confidently rely on these basic legal tools to convince reviewing courts not to reverse even the most carefully researched and reasoned trial court rulings. This puts tremendous pressure on lower courts to cajole and pander to higher courts rather than to argue to them. Arbitrariness from above distorts judicial practice below.

Throughout the criminal trial that resulted in his felony conviction, Trump deployed his tried and true strategies for evading legal accountability for his wrongful conduct. He harangued and threatened Judge Merchan, court personnel, and the judge’s family member. He then repeatedly violated orders to stop, resulting in multiple findings of contempt of court. He filed appeal after appeal of Merchan’s rulings, without success, which never prevented him from making the same discredited arguments to the court. Meanwhile, in the federal criminal proceedings against him, Trump used the same tactics, but with stunning success. He got an issue before the U.S. Supreme Court, which, in Trump v. United States, decided to bestow unprecedented, dangerous Presidential immunity from federal criminal prosecution. Now, back in New York, Trump has tried to leverage that ruling into something he calls “President-elect immunity.” Trump has argued to Merchan that this manufactured doctrine requires complete dismissal of Trump’s felony convictions and hence no sentence for his crime.

In response, Judge Merchan issued today’s ruling and opinion in support of it. He memorializes throughout how he has consistently given Trump latitude and how his rulings against Trump have been upheld. This is where the distorting effects of a Supreme Court so inclined to put Trump above the law begin. Merchan is clearly reminding New York State appellate courts of their responsible approach so far, while also doing what he can to preserve his decision from reversal by the Roberts Court. Merchan, like the rest of us, knows Trump will do all he can to get the current matter before the Supreme Court. And Merchan, like the rest of us, also knows the Roberts Court’s propensity to shelter Donald Trump.

Thus, early in his arguments, Judge Merchan goes out of his way to flatter and appeal to John Roberts personally. In a footnote, Merchan writes of Trump’s counsel that they have peppered their pleadings with “language, indeed rhetoric, that that has no place in legal pleadings.” As Merchan correctly notes, Trump’s lawyers accuse him of acting criminally, not just legally incorrectly, for ruling against Trump. Quoting extensively from John Robert’s recent annual report on the federal judiciary, Merchan explains how Trump’s accusations are an effort to chill the judicial branch of government. Merchan concludes:

[O]ur Rule of Law provides a system of appellate review for higher courts to consider a litigant's claim of error below. This Court is in complete agreement with Chief Justice Roberts' views on this subject. Dangerous rhetoric is not a welcome form of argument and will have no impact on how the Court renders this or any other Decision.

This passage is brave, adroit, and sad. Brave in its vow to act without fear or favor, adroit for appealing to Roberts’ own public position, and sad in its awareness that Roberts must somehow be prized from his fealty to Trump.

Again and again, Judge Merchan underscores his effort to respect the reasoning of Trump v. United States, even though the posture of that case obviates its precedential force for New York’s prosecution of Trump. And again, this is both adroit and sad. Adroit because he is giving the U.S. Supreme Court grounds to disregard Trump v. United States entirely or to rule that its reasoning does not forbid the sentencing of Trump in the New York case now. Sad because of the necessity for Merchan to expend so much energy stroking the ego of Roberts and the other justices.

The one person Judge Merchan clearly feels no need to coddle or flatter is Trump himself. One set of arguments Trump advances for the court to set aside his convictions is under a New York statute that permits a judge to override a criminal jury conviction in the interests of justice. This is rarely warranted by the statute, which creates a ten part multi-factor test for a judge to apply. These factors include the seriousness of the crime and the character of the defendant. So, legal analysis requires Merchan to discuss the quality of Trump and his crimes.

Merchan writes:

Here, 12 jurors unanimously found Defendant guilty of 34 counts of falsifying business records with the intent to defraud, which included an intent to commit or conceal a conspiracy to promote a presidential election by unlawful means. It was the premediated and continuous deception by the leader of the free world that is the gravamen of this offense.

Merchan continues:

Defendant's disdain for the Third Branch of government, whether state or federal, in New York or elsewhere, is a matter of public record. 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. … Defendant's character and history vis-a-vis the Rule of Law and the Third Branch of government must be analyzed … in direct relation to the result he seeks, and in that vein, it does not weigh in his favor.

Judge Merchan is trying to serve rule of law in a country where the highest federal court no longer shares this objective. He is clearly writing to get that court to correct its ways. Too bad Merchan — and the rest of us — cannot rely on the Roberts Court to respect the power of his legal arguments and analysis. Too bad that personal flattery has become so necessary to any effort to prevent the U.S. Supreme Court from further putting Donald Trump above the law. This amounts to having to curry favor with a royal court, rather than writing, judge to judge, to a legitimate Supreme Court committed to a republican constitutional democracy.