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The opinion this week by Justice Juan Merchan denying Donald Trump’s motion for a new trial erects a bigger roadblock than commentators have realized to Trump’s obsessive quest to wipe away all records of his felony convictions.
And Trump’s unhinged rant in response reveals the President-elect at his contemptuous worst. It forcefully drives home that a madman-felon is about to ascend to the most powerful office in the world.
Trump’s spectacular meltdown is a reminder that,however successful he may be, Trump operates in one gear only. He is continuously aggrieved, and his bitterness will infect if not define his return to the Oval Office.
The overall stakes for Trump in this case have shriveled to near zero. He is not going to jail, at least not before 2029 and probably not then. He has managed to make the other three criminal cases against him effectively disappear. Two of them–the two federal ones–were based on overwhelming evidence, and either could have landed him in jail for the rest of his life. The third–the Fulton County Georgia RICO prosecution–is deeply mothballed and unlikely ever to return.
That leaves the New York case in which Trump was convicted of 34 separate felony counts. Trump is hell-bent on erasing that scarlet letter, which, as of now will have him assume office as the only felon ever to occupy the White House. It’s not enough for him to escape any consequences; he wants to wipe the slate as if the case never happened. And he entertains the notion that his electoral victory, which he calls a landslide, represents a judgment in accord from the American people that, moreover, has legal force.
That brings us to the motion that Merchan denied earlier this week. It’s styled as a motion for a new trial based on asserted violations of the Supreme Court’s immunity opinion. But one could presume that if Trump can successfully push the proceedings back to square one, the odds the case will ever once again advance to square two, much less conviction, are slim.
(Note that the motion that Merchan denied this week is separate from the other shoot-the-moon effort that Trump brought on December 2. That motion, which is now fully briefed and Merchan could take up in any time, tries to extend the principle that a sitting president cannot be prosecuted to Trump’s currentstatus as a president-elect.)
Trump’s motion seeks a new trial based on probably the furthest reaching aspect of the extraordinarily far-reaching Supreme Court’s immunity opinion in United States v. Trump. After announcing a core of absolutely immune presidential conduct, and another circle of presumptively immune conduct, the Court, with scarcereasoning, proclaimed that the mere introduction into evidence of immune conduct would violate the Constitution. Justice Barrett parted company with the other conservative members of the court on this dubious holding.
Trump’s motion argues that many pieces of evidence of immune conduct were improperly introduced in the New York trial. As always, his argument was scattershot, and the motion itself is a good reminder that for all his phenomenal luck, Trump’s lawyering has by and large ranged from poor to atrocious. One likely reason is that Trump is the world’s worst client, and he forces his lawyers to depend on dubious lines of legal argument while making daily trouble himself with intemperate out of court statements.
Merchan’s opinion–well-crafted, thorough, and the first in-depth opinion applying the Supreme Court’s immunity holding–disposes of all of Trump’s claims and does so in a way that will be very hard to reverse on appeal. That’s because for the most part, Merchanrelied not on a substantive immunity analysis but more pedestrian, technical grounds. Those grounds would be hard for a higher state court to reverse, and even harder and more anomalous for the Supreme Court to review and reverse.
There were two main ways in which Merchan disposed of most of Trump’s claims without reaching the substance of the immunity analysis. The first was the doctrine of preservation of objections. The rule is straightforward: you have to object in real time so the judge can decide on the evidence then and there. If you don’t, it’s too late. You can’t un-ring the bell, and you certainly can’t stay silent, wait for the proceedings to end, and then yell, “Aha! That evidence was admitted incorrectly!” This doctrine also supports the primacy of the trial itself as the “main event.” The last few years of Trump trials have brought home just how much preparation is involved in bringing a case to trial. It’s a large expenditure of social resources, and there’s a strong societal interest in taking the verdict as conclusive and avoiding unnecessary do-overs.
Trump’s motion started in a fairly deep hole because of deficient lawyering: Team Trump failed in most cases to preserve objections to the evidence that they now say runs afoul to the immunity opinion. Some of that was arguably strategic and bound up in the effort to move the case from state court to federal court. Most of it seems to have been sheer carelessness.
Merchan strictly applied the doctrine of non-preservation and used it to reject a large chunk of the claims. Trump’s lawyers fought that outcome. Their first excuse was that the immunity decision, which was the basis of their current objections to the evidence, “took us by surprise.” That claim didn’t wash. First, Trump’s lawyers did anticipate the decision for Hope Hicks, where they lodged an immunity objection just before her testimony. More importantly, under New York’s preservation doctrine, it doesn’t matter if an intervening Supreme Court opinion alters the governing law; a lawyer is still expected to object and preserve the issue.
Alternatively, Trump tried to say the evidence was so crucial that it went to “the essential validity of the process and so fundamental that the entire trial is irreparably tainted.”
That narrowed the field to a few tweets about the case that were introduced at trial and, the main focus of the opinion (as I have to say I predicted at the time), interactions with Hope Hicks in the Oval Office when she was Trump’s Communications Director bringing him the news that the Wall Street Journal was planning to run a story about the 2016 hush money payout to Stormy Daniels.
For those pieces of evidence where objections were properly preserved, Merchan does undertake an immunity analysis, but he rejects Trump’s arguments that the evidence pertains to immune conduct. Merchan’s basic take is that the evidence concerned unofficial action, a sensible enough conclusion when the whole trial was about paying Daniels off to keep her story from coming out before the election.
Critically, however, he also ruled that even if the remaining pieces of evidence had been admitted in error, the error was harmless (also part of the chain of reasoning I had expected). A little like preservation doctrines, harmless error bolsters the idea that the trial is the main event and shouldn’t be lightly upset. Where it’s clear that the jury still would have returned to guilty verdict even if a particular piece of evidence had been excluded, the admission of that evidence is “harmless” and can’t serve as the basis for a new trial.
The harmless error analysis is straightforward here. Merchan’s opinion marches through the great wealth of evidence, testimonial and documentary, that the DA brought before the jury. The prosecution’s basic use of the contested Hicks evidence was to show that the Stormy Daniels reports occasioned great panic in Trump land. The jury knew that six ways from Sunday from other evidence without hearing it from Hicks. I can personally confirm from having been in the courtroom for most of the testimony that Hicks added just a couple drops to an already big pool.
The significance of both the harmless error and non-preservation analyses is that they present a basis for affirming the opinion without reaching the substance of the immunity analysis. In fact, unless an appellate court plays it fast and loose, it will need first to consider these bases for affirmance. And a higher court will give deference to trial courts’ assessments of harmless error based on the trial court’s superior vantage point of having observed the evidence come in and its effect on the jury.
I think given the structure of Merchan’s opinion, there is little basis for NY appellate courts or the Supreme Court to order a new trial. The question before them won’t be the grandiose one of how to apply the immunity opinion; it rather will be the far narrower work a day issues of whether the error was harmless or the objections not preserved. Technically, the question of harmless error for a federal constitutional claim—as Trump is making—is something the Supreme Court could review, but it would be a silly use of the Court’s resources to take up such a picayune question on a well-established point of law and it would border on inconceivable for the Court to then take the case and reverse Merchan’s specific harmless-error analysis.
Further, this week’s opinion does drop one hint about how Merchan might approach Trump’s separate motion that the whole case be wiped from the pages of the law because of his status as a president-elect. Merchan specifies that the communications with Hicks “relate to pre-inauguration intimate interactions between Defendant and two different women.” That suggests what is only sensible: Trump’s pre-inauguration status was necessarily not official. That augurs a rejection of Trump’s basic, strained claim that a president-elect must be treated like the President for purposes of immunity.
In fact, Trump’s argument proves as much. It’s axiomatic that we only have one president at a time. That’s Joe Biden. Therefore, for purposes of the immunity opinion, Trump is a private citizen. And obviously there’s no problem with prosecuting and sentencing a former president.
Trump’s upcoming motion relies heavily on the principle set out in a memo by the Office of Legal Counsel that a sitting president can’t be investigated or prosecuted. That principle doesn’t change according to whether conduct is official or unofficial. The DOJ and Jack Smith have acknowledged that it slams the door on any further proceedings after January 20. But what about before January 20? Trump’s ploy here is to try to mush together pre-inauguration and post-inauguration conduct and argue that the same principles that are in play for prosecuting a sitting president are likewise in play for someone soon to ascend to that office.
And yet as everyone has repeatedly recognized in all of these criminal cases, we are in “unprecedented circumstances” as a result of the electoral victory of a convicted felon. Merchan has already recognized these circumstances by his willingness to delay the sentencing. So, the next move, the pivotal one, is Merchan’s: will he proceed to sentencing now (likely something light such as a fine) before Trump is inaugurated, or will he wait until January 20, putting things in a deep freeze until after Trump leaves office?
My best guess is that he will agree with Bragg that the record of the conviction has to be preserved in some fashion. It makes sense to proceed to sentencing now, since Trump is not President and there is no other constitutional impediment. But Merchan also knows that Trump will pull out all stops to get higher courts to countermand him if he schedules the sentencing in the next few weeks. It does seem to me that there’s no valid constitutional objection to sentencing a president-elect. Relatedly, there is nothing in the expansive immunity case that requires what Trump demands: in essence the scrubbing of history—1984 style—to erase the fact of Trump’s convictions.
Trump’s grandiose insistence that he is entitled to exactly that is remarkable. Most people who followed the trial would have predicted Merchan’s opinion. Trump’s response was astonishing, even for him. The rants seem like the sort of thing that a disturbed patient might stand up and scream on a bus and end up in a straight jacket. Trump called the order “illegal and psychotic,” Merchan “corrupt,” “incompetent,” and “a radical partisan,” and the opinion “knowingly unlawful”. He concluded in an it-would-be-funny-if-it-weren’t-so tragic peroration that if the opinion were allowed to stand, “it would be the end of the Presidency as we know it.”
He followed that up Tuesday with yet another longer-than-long shot to wipe the board clean: a letter raising a new challenge based on the supposed misconduct of a juror. The public part of the letter is redacted and hard to evaluate, but it looks to be completely speculative, and for the same reasons as the harmless error doctrine, it’s very difficult to get a new trial based on misconduct after the jury has been discharged.
This behavior points to a distinctive fact worth remembering: the more power Trump acquires, the more his expectations grow, and the more his dissatisfaction and grievances emerge. And whatever his grievance is—and he is never without grievance—he will always take it to 11.
The legal landscape that possibly threatened Trump with dying in prison has now almost entirely collapsed into one little rough patch, the New York convictions. But it’s precisely that patch that has become Trump’s miserable obsession. It’s possible that a friendly Supreme Court down the line may again come to the rescue and hold that Trump’s electoral victory somehow vitiates the New York convictions, but it’s hard to see any basis for doing that at this juncture. And assuming the New York case remains alive in some fashion, even on life support, it will continue to consume and derange him. Because that’s the kind of sociopath madman felon president-elect that he is.
Talk to you later.
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