Trump 'sentence' is a travesty, not a victory

Analyzing the latest court decision from Judge Juan Merchan -- and how it shows that the Manhattan DA is the reason why Trump will walk away from 34 felony convictions.

The new year has already brought a new court ruling in the Trump legal cases, this time from Judge Juan Merchan in New York this past Friday, denying Trump’s attempts to shut down the criminal case against him there and forcing Trump to be sentenced this Friday, January 10 (although, critically, giving the spoiler alert that Trump’s sentence will not include incarceration).

But before anyone hails this result as a crowning achievement of justice, we must dig a bit more deeply into what is about to happen here. Judge Merchan has given every indication that he is willing to stand firm against the aspersions cast on him by Trump and his lawyers — but Manhattan District Attorney Alvin Bragg and his office have so completely capitulated that Merchan’s steadfast bravery is being wasted.

The Nodfather in action. And yet somehow after a well-executed trial and 34 felony convictions, Donald Trump is going to walk away.

First, a piece of background: the American legal system, and the British legal system from which it evolved, is known as an “adversarial” system in which the opposing lawyers drive the proceeding and the judge’s primary job is to play referee. The alternative is known as an “inquisitorial” system wherein the judge actually drives a lot of the questioning, as well as gathering and analyzing evidence, not as a referee but as a truth-finder; this is the paradigm in “civil law” countries such as France, Germany, China, and Japan.

Thus, Judge Merchan does not get to choose his own adventure here. He has to work within the confines of what the opposing lawyers argue. They determine the realm of possible outcomes.

This has happened multiple times now. Trump pushed for the sentencing to be postponed until after the election — and the prosecution did not contest that request. Trump now pushes for the entire case to be dismissed — and the prosecution, far from making a case for a sentence that includes prison time, came up with multiple avenues by which the case could be effectively dismissed while still technically preserving the convictions.

In these situations, Merchan’s hands are tied. He cannot decide what is not even being argued.

Here is the critical passage from Merchan’s ruling. Do you see what I see?

While this Court as a matter of law must not make any determination on sentencing prior to giving the parties and Defendant an opportunity to be heard, it seems proper at this juncture to make known the Court’s inclination to not impose any sentence of incarceration, a sentence authorized by the conviction but one the People concede they no longer view as a practicable recommendation.

Reading between the lines, it is clear that Merchan would at least consider prison time for Trump, if only the Manhattan DA would ask for it.

Remember, each of the 34 felony counts of business fraud Trump was found guilty of can carry up to four years in prison. This is not a situation in which imprisonment would be an extreme scenario. It is a situation fully contemplated by the New York legislature when it passed this section of the Penal Code — and fully contemplated by the jury when it returned 34 findings of guilt.

Moreover, while it is true that this is Trump’s first set of personal convictions, it is not the first time that he has been adjudicated as a fraudster — see, e.g., the $454 million civil fraud judgment against Trump last year for overvaluing his real estate properties, the forced shutdown of the Trump Foundation, and the Trump Organization’s corporate criminal conviction for tax fraud in illegally compensating former CFO Allen Weisselberg¹ — and that long history of fraud weighs heavily in favor of a stiffer sentence for these 34 business fraud convictions.

On top of all this, we should also throw onto the scale Trump’s adjudicated findings of committing sexual assault and defamation (in the E. Jean Carroll case) and all of the instances in which Judge Merchan himself found Trump in contempt of court (which Merchan does reference in Friday’s decision), plus the fines ordered by Judge Arthur Engoron in the civil fraud case for Trump’s refusals to provide evidence and witness testimony. And as the cherry on top, we can also throw in Trump’s total unrepentant lack of contrition and continued baseless accusations of the illegitimacy of the proceeding and the corruption of those conducting it (again, referenced by Merchan in his decision).

So this is not a situation in which an otherwise clean defendant is walking into a courtroom with a true mea culpa and asking for a freebie. This is a situation in which a defendant with a long record of fraud and other gross misconduct is showing zero remorse or respect for the court and its decisions.

Against literally any other defendant with this track record and demeanor, the judge would be issuing a sentence of imprisonment. Indeed, against any other defendant, the case would not have been halted for a year (as Bragg did in 2022), the sentence would not have been delayed (as Bragg agreed to last year), and the defendant would have been convicted in 2023 and would be behind bars today.

And it is not Judge Merchan’s job — nor is it the Manhattan DA’s job — to look ahead to the appellate and constitutional battles that would ensue if Trump were sentenced to prison, nor to the logistics of how imprisonment would work. The Manhattan DA’s job is to make the strongest argument possible for enforcement of the law, and the judge’s job is to render a fair sentence given the facts and the law. Everything else is someone else’s problem. Just because a prison sentence could be stayed or overturned by a different court does not mean that you stand down and refuse to do your job.

Again: anything less means peeking under the blindfold of justice to see who the defendant is — and then blinking.

Judge Merchan is doing his job. It is Alvin Bragg who has failed to do his.

1. To say nothing of the Trump University case, although the $25 million settlement came before any official adjudication of liability.