Judge Merchan and the rule of law

September 7, 2024

Judge Juan Merchan’s decision to delay sentencing of Donald Trump until after the election has left people feeling unsettled. On the one hand, the decision was a lawful exercise of the court’s discretion in selecting one of several reasonable options. On the other hand, the decision feels unfair, yet another instance of Trump seemingly being afforded a more lenient standard of justice than that applied to every other citizen.

Judge Merchan’s decision is another example of what makes this period in history so maddening: Trump and MAGA extremists are leveraging an asymmetry in respect for the rule of law. They have none, while Democrats (and many other Americans) recognize that upholding the rule of law is all that stands between us and tyranny.

Consequently, we must begrudgingly accept outcomes that feel unfair but are within the pale of justice. Judge Merchan’s decision is one such outcome. Criminal prosecutions are intended to promote the public interest. While Judge Merchan was not required to account for Trump's candidacy, it was not unreasonable for him to consider the public interest in avoiding disruption to the presidential election.

The feeling of unfairness arising from Judge Merchan’s decision is that Trump attacked and undermined the rule of law at every turn in his prosecution: He attacked the judge and his family, attempted to prejudice the jury inside and outside the courtroom, engaged in contemptuous conduct on at least ten occasions, impugned the motives of the prosecutors, and undermined the legitimacy of the justice system.

It is difficult to imagine a defendant less deserving of the presumption of fairness and avoidance of the appearance of bias than Donald Trump. And yet, Judge Merchan granted Trump those benefits not because Trump deserved them, but because Judge Merchan believed that the public did.

By delaying Trump's sentencing, Judge Merchan removed claims and counterclaims of election interference, bias, and unfairness that would have inevitably followed any sentencing decision by Judge Merchan. Trump will stand before Judge Merchan in a sentencing hearing, but not at a time that might disrupt an already contentious election. Judge Merchan made that point in his order continuing the hearing:

The public's confidence in the integrity of our judicial system demands a sentencing hearing that is entirely focused on the verdict of the jury and the weighing of aggravating and mitigating factors free from distraction or distortion. The members of this jury served diligently on this case, and their verdict must be respected and addressed in a manner that is not diluted by the enormity of the upcoming presidential election.

Adjourning decision on the motion and sentencing, if such is required, should dispel any suggestion that the Court will have issued any decision or imposed sentence either to give an advantage to, or to create a disadvantage for, any political party and or any candidate for any office.

Adjournments for sentencing are routinely granted, often several times . . . particularly when unopposed[.] Given the unique facts and circumstances of this case, there is no reason why this Defendant should be treated any differently than any other. This is not a decision this Court makes lightly but it is the decision which in this Court’s view, best advances the interests of justice.

It is difficult to fault Judge Merchan’s reasoning, even though the opposite outcome would have been equally reasonable.

Today, we are in precisely the same position we were before Judge Merchan’s decision: Holding Trump accountable for his crimes requires defeating him at the ballot box.

Most importantly, the nation will be rid of Donald Trump one day. When that day comes, we must deliver the rule of law intact to future generations. Suspending or distorting the rule of law now to advance partisan political interests—however urgent and compelling—would damage that legacy. Trump is not worth it. No one is.

However painful and unsatisfying, we must honor the rule of law even as MAGA extremists seek to destroy it. We defend the rule of law by keeping politics out of it—except for the Supreme Court. Trump has corrupted the Court by manipulating—in bad faith—the constitutional mechanisms for appointing justices. Democrats must use those same mechanisms in good faith to reform the Court by imposing a binding code of ethics and enlarging it, as permitted by the Constitution.

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Trump lashes out at women accusing him of sexual assault

In a second bizarre appearance this week, Trump spent 45 minutes in a grievance-filled “press conference” overflowing with defamatory attacks on women who have accused him of sexual assault. The one thing the “press conference” did not include was questions from the press.

Trump's 45-minute rant reminded voters of the multiple accusations of sexual assault against him. And in a breath-taking admission, he said he did assault one of his accusers because, “[S]he would not have been the chosen one.” That defense repeats his claim that he did not sexually assault E. Jean Carrol because “She’s not my type.”

It is Kafkaesque that one of the major party nominees has so many credible claims of sexual assault lodged against him that he can spend 45 minutes denying them. In any other era in American history, such allegations would be instantly disqualifying. But the major media focuses on horse-race polling to the exclusion of character and demonstrated unfitness for office.

Even as Maggie Haberman of the Times provided an accurate recitation of Trump's rambling discourse, she acknowledged, “As a one-off event, Mr. Trump’s diatribe was already receding from view in headlines by late afternoon.”

Of course, as long as the Times continues to lose interest in Trump's meltdowns in four hours, it is no wonder that Trump's depravity is overlooked by the public.

There is a growing consensus that the press is failing to hold Trump accountable for his criminality and corruption. Rebecca Solnit of The Guardian addresses the failure of the press in her op-ed, The mainstream press is failing America – and people are understandably upset.

I recommend Solnit’s essay to your weekend reading, but to whet your appetite, I excerpt the following:

The first thing to say about the hate and scorn currently directed at the mainstream US media is that they worked hard to earn it. They’ve done so by failing, repeatedly, determinedly, spectacularly to do their job, which is to maintain their independence, inform the electorate, and speak truth to power.

They pursue the appearance of fairness and balance by treating the true and the false, the normal and the outrageous, as equally valid and by normalizing Republicans, especially Donald Trump, whose gibberish gets translated into English and whose past crimes and present-day lies and threats get glossed over. They neglect, again and again, important stories with real consequences.

Solnit’s criticism that the press “translates Trump's gibberish into English” was also discussed by Isabel Fattal in The Atlantic | Daily, A new level of incoherence from Trump. Fattal writes,

But the biggest problem, the problem that all journalistic analysis of Trump's response ought to lead with, is that his answer makes absolutely no sense. Earlier this summer, The Atlantic’s editor in chief, Jeffrey Goldberg, warned about “one of the most pernicious biases in journalism, the bias toward coherence.” Journalists “feel, understandably, that it is our job to make things make sense,” he wrote. “But what if the actual story is that politics today makes no sense?”

When Joe Biden stumbled in attempts to express himself—a lifelong characteristic driven in part by his stutter—the Times wrote dozens of stories suggesting that Biden was unfit to be president (despite his spectacularly successful current presidency). But when Trump speaks gibberish, the Times strains to glean meaning and coherence where none is to be found.

The question is, “Why?” Why does the media believe it is their role to filter and correct Trump's incoherence? The answer to that question will vex historians for decades and centuries to come.

In the absence of a satisfying or clear answer to that question, my default assumption is that the major media sees Trump as good for business, even if he is bad for democracy. Profit über alles. Shame on them.

Trump is a uniquely unfit candidate for the presidency The presidential oath of office requires the president to swear to protect and defend the Constitution—which Trump has already attempted to overthrow on one occasion and has promised to do so again.

Before Joe Biden withdrew from the race, there was a general sense that “the need to defend democracy” was not an argument that resonated with voters. It should be. Perhaps it is time for Kamala Harris to revisit and reframe the argument, especially given the renewed activity around Trump's legal and criminal jeopardy. It sure would be nice if the major media viewed Trump's threat to democracy as newsworthy.

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Opportunity for Reader Engagement

On September 10 at 12:00 p.m. Eastern BigTent is thrilled to host Lucille Wenegieme, Executive Director of HeadCount. Lucille will discuss HeadCount’s impactful work in fostering voter engagement and civic involvement with young voters, through music and culture. She will highlight their strategies and innovative approaches to promote voter registration and democratic participation.

HeadCount gets people registered to vote and interested in democracy. They are at concerts, festivals, community events – anywhere they can translate the power of music and culture into real action. Their mission is to use the power of music and popular culture to register voters and promote participation in democracy. They reach young people where they already are to inform and empower.

HeadCount stages nonpartisan voter registration drives at more than 1,000 live events each year and collaborate with cultural leaders to promote civic engagement on a national scale. Since 2004, they’ve signed up over 1,000,000 voters through their work with touring musicians like Ariana Grande, Dead & Company, and Beyoncé and more.

Please use this link to register!  

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Concluding Thoughts

Kamala Harris has been off the campaign trail as she prepares for next week's debate. That is a wise investment of her time. The debate may be the first opportunity for many Americans to see Kamala Harris in action. Let’s hope that her advisers have learned a lesson from the over-preparation of Joe Biden in his July debate with Trump. All Kamala Harris needs to do is be herself. She is experienced, smart, competent, compassionate, and tough. If she can communicate those qualities, that will be a resounding victory.

Let Kamala Harris worry about the debate. With less than 60 days remaining until the election, we need to continue efforts to register voters and get out the vote. We must be unrelenting in those efforts and avoid distractions from weaponized polling and fake controversies. We can do that. Indeed, we are doing that across the nation evey day. We just need to keep it up!

Talk to you tomorrow!

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Daily Dose of Perspective

A reader asked me to put a “light year” in perspective. Light travels 5.88 trillion miles in a year. For comparison, the Earth is 93.6 million miles from the Sun. Driving a car at 60 miles an hour without a break would take about 11,000 years to drive one light year.

Below is Nebula Sharpless 2-108. It is 1,500 light years from Earth and has a diameter of 26 light years. If you drove day and night at 60 miles per hour without stopping, it would take you 286,000 years to drive across Sharpless 2-108.