For a variety of reasons, the United States Supreme Court has a constitutional obligation to take up President Trump’s criminal case following his unlawful conviction in New York state court.
First and foremost, federal issues permeate this case. While it was never a case that should have been brought in any court in the first place, this case especially should not have been brought in state court, where jurisdiction patently does not exist. The driving legal issue was purportedly a campaign finance law violation which fell within the gamut of the Federal Election Commission. Bragg flimsily paired that charge with an alleged bookkeeping error to contrive his makeshift theory of criminal liability. This was a theory of liability that was wholly bespoke and lacking any legal precedent whatsoever. In short, it was a theory befitted to one man and one man only: Donald John Trump.
Many experienced legal scholars, including those on the Left, have pointed to this remarkable fact. Indeed, even the most liberal court observers, largely sympathetic to Bragg and Merchan’s political crusade, were left asking how precisely this legal theory could possibly be replicated for any other defendant. Many rightly pointed out that this was the classic case of “show me the person, I’ll show you the crime.”
Incredulously, the judge in this case, Juan Manuel Merchan, allowed the Prosecution to categorically ignore the rules of evidence and professional ethics. Also disregarded were fundamental, time-tested principles of Anglo-American jurisprudence: including due process, the presumption of innocence, and perhaps most flagrantly – and jarringly — the necessity for unanimity in guilty verdicts.
Starting with the gag order, which by its design was a flagrant breach of President Trump’s constitutional rights to speak and criticize the court proceedings as he saw fit. Under federal law, gag courts conventionally are to be imposed only with the utmost care. They are to be limited in size and scope. Gag orders are the quintessential example of what, under the law, is called a “prior restraint” on speech. Courts have always been highly reluctant to impose free-speech limitations on anyone, most of all in the form of a gag order. To the extent gag orders are ever permissible, they must be narrowly tailored to address a compelling state interest. In other words, strict scrutiny, the highest and most exacting standard of judicial review, must be met. The government, not the defendant, has the burden of proof of demonstrating 1) a compelling state interest exists that 2) warrants such an infringement on a fundamental constitutional right – namely, that most important right to expression delineated in the First Amendment.
The operative presumption is that any such restrictions on speech in the form of prior restraints are, normally, unconstitutional. Even, in the exceptionally rare case where the government does meet the requirements for strict scrutiny, the scope of the prior restraint must be highly, highly circumscribed to the conditions for which the court found the restriction necessary. In the case of gag orders, usually the reason judges give for allowing them is not to protect the judge, as Merchan rather unbelievably asserted here – yet another flagrant break from precedent – but to protect the defendant from undue scrutiny or controversy or even endangerment (to borrow another famous constitutional phrase) “to life and limb.”
In this regard, the way Merchan weaponized the gag order here to suppress President Trump’s First Amendment rights functioned as a baldfaced attack on the Defendant’s fundamental liberties, for one, and the integrity of the judicial process, for two. First, whenever judges typically weigh the merits of imposing a gag order, usually the countervailing threat to the defendant’s other constitutional rights significantly outweighs the cost of the short-lived burden of limiting the Defendant’s speech rights. In the Merchan case, arguably the opposite was the case: the gag order itself violated, in addition to the defendant’s First Amendment rights, other fundamental constitutional rights as well. Indeed, the gag order arguably put President Trump in greater jeopardy – and jeopardized the overall integrity of the judicial process – than if it had not been ordered. This is because President Trump was prohibited from exposing the many conflicts of interest that existed in this case – conflicts that ran so deep as to seriously undermine the legitimacy of the entire proceeding – in addition to the validity of the final verdict.
The conflicts were myriad: Merchan donated money to Joe Biden, who will face Donald Trump in this November’s election. He donated to another PAC committed to stopping President Trump in his tracks. His wife worked for Letitia James: the New York Attorney General who pledged to “get” Donald Trump on the campaign trail. His daughter serves as president of a consulting firm that has taken in millions upon millions of dollars from far-left Democratic politicians, like Adam Schiff and Ilhan Omar, who have in turn waged political jihad against Donald Trump. Oh yeah, one of her clients is also the Biden-Harris campaign, who have something of a vested interest in seeing President Trump be locked behind bars – especially given the present state of the race, where most reputable polls have them down, and by significant margins, in most of the key battlegrounds needed to win the 2024 race.
This past week, Merrick Garland was interrogated in a congressional hearing by Rep. Matt Gaetz about whether he had ever donated money to a political campaign or candidate while serving as a judge, a violation of the judicial code of ethics. Garland demurred. He said no, because the rule is crystal clear that such donations, however minuscule, are impermissible. If Gaetz had asked the Attorney General whether he believed the rule was a valid one – in other words, whether it logically made sense for judges generally to not donate to partisan candidates, I’m sure Garland would have said of course. If not, his DOJ would be leading the charge to change the rule. It does not make sense to abide by a rule that is illogical or unsound. Thus, it becomes inexplicable as to why that same reasoning would not also apply to Merchan’s case. State court judges are swayed by the same political biases and imputed with the same types of conflicts as any federal judge. Merchan has a clear vested interest – politically, financially, professionally and personally – in prosecuting President Donald Trump, the leading candidate, based on every poll, to become the 47th President of the United States. Merchan’s arbitrary and capricious use of the gag order to protect himself over and above the integrity of the justice system reeks of improprieties. What Merchan did was criminal, and those grounds alone – the judicial trampling over President Trump’s First Amendment and due process rights – raise all sorts of jurisdictional grounds for the Supreme Court to intervene and reverse this irremediably prejudiced verdict.
Beyond the gag order issue, other federal questions run rampant. To reiterate a point from earlier, this was a case that had already been looked at by federal agencies with prosecutorial discretion, including the DOJ, and in the case of the Federal Election Commission, had years ago received a clearance. At the bare minimum, the underlying verdict which included a FECA violation should have been preempted by the FEC’s own exclusive jurisdiction to take up such matters. The fact that the agency had already cleared the case would, presumably, render the “mix-and-match” verdict that included the alleged FEC violation, voidable. Merchan is no expert on federal law, far from it. He is an acting judge who graduated from a mediocre law school. For him to unabashedly assert that only “I can say what the law is” is an egregious overreach of his duties. First, it is an utterly ignorant and unwise remark. State court judges have only a very narrow lane for jurisdiction. It is not Merchan’s place to make categorical judgments and assertions about law well beyond his realm of expertise or jurisdiction.
Second, his statement was impeached by his own conduct, where he allowed the lead prosecuting attorney, Joshua Steinglass, to ramble on for hours and hours on end about points of law, including the burden of proof, in cases where he prevented Todd Blanche from doing the very same thing. Perhaps most egregious of all, Merchan did not even allow testimony from an expert witness in federal election law! It is bad enough that a state court is ruling on a matter that is outside its jurisdiction. But at the very least, allow the defense the opportunity to bring in an expert to explain to the jury the federal law that was implicated in this case. That, Merchan did not allow. Why? Because he operated with a clear bias – a clear animus – against the defendant. This was a conflicted judge who carefully tailored the facts and jury instructions in the best possible light for the prosecution. He wanted a guilty verdict and did everything in his power to make an acquittal, or even hung jury, inconceivable. Thus, President Trump’s guilt was a forgone conclusion the minute he stepped into the courthouse, which is the very definition of a kangaroo court show trial.
I have already discussed two issues that demand federal intervention: 1) the assault on President Trump’s First Amendment rights from the arbitrary and capricious scope of the gag order itself, which failed to meet strict scrutiny. This is the standard of review the government is required to meet for all infringements on speech in the form of prior restraints, of which gag orders are the paradigmatic example. And 2) the jurisdiction problems arising from trying a federal issue – that had already been cleared by the requite federal agencies – in state court.
The third issue stems from the mix and match guilty verdict itself, which contravenes federal law in the worst possible way. The Supreme Court had made crystal clear in the decision Ramos v. Louisiana, that in a criminal trial, the jury verdict as to the underlying crime must be unanimous. It is a time-tested principle of Anglo-American law that requires all twelve jurors not only agree the defendant is guilty in reaching their verdict (in other words, that the burden of proof, beyond a reasonable doubt, is proved by the Government for all elements of every crime alleged), but that the jury is unanimous as to the underlying crime itself!
The reasons for this should be obvious to anyone with even the most basic knowledge of our legal system: you can’t just have an “all of the above” approach to reaching a guilty verdict, because that would be an assault on the defendant’s due process rights. In a way, such a verdict can be construed as a violation of double jeopardy and function almost like a bill of attainder – because the evidentiary standard and burden of proof is essentially watered down to accommodate more than one crime. But the logic that otherwise informs the Left’s view of voting rights in one of their favorite legal aphorisms, “one person one vote”, is perplexingly not extrapolated to the courtroom (at least when Donald Trump is the defendant), where, applying the same sentiment and reasoning, would otherwise dictate an instruction of “one crime, one verdict.”
To put matters more succinctly: here, Merchan said “I need you to find President Trump guilty of one of three predicate crimes: it can be an FEC violation, a tax law violation, or a general bookkeeping violation (never mind the circular reasoning of one of the three predicate crimes being the same crime as the primary crime in this cockamamie judicial scheme). It doesn’t matter which predicate crime you find him guilty of, so long as you find the People met their burden of proof on at least one of them!” The way Merchan instructed the jury teed up the prospect that a few, even a majority, of jurors could disagree that Bragg met his burden of proof for all three so-called crimes. Merchan did his best impression of Machiavelli and effectively told his jury that when deciding on a verdict, “the end justifies the means.” What he needed was a guilty verdict – less important was how the jury got there. How the jury ruled, ultimately, on the matter remains cloaked in anonymity. The public has a right to know, following Supreme Court precedent, at a bare minimum, on which underlying predicate crime the jury found President Trump guilty. Rather than maximize transparency and demand unanimity, Merchan instead maximized anonymity and put unanimity on the chopping block.
Of course, the reasons why Merchan and Bragg have worked so hard to keep the process secret is because if any of this got exposed, the entire decision, so riven with constitutional violations, errors, and abuses, would be easily tossed out the window the minute it reached an appellate court that maintained some semblance of fairness. Generally speaking, federal courts are much more rigorous, in their application of the law, than state courts. This is because the standards are typically much higher for federal court – the quality of judges and prosecutors found in federal courts ordinarily (though not always) are of several grades higher than the acumen of Bragg, Merchan, and Joshua Steinglass. The sort of chicanery Merchan got away with in providing a smorgasbord of options for the jury would be less tolerated in federal court. It is also troubling how Merchan could have possibly instructed the jury adequately to prosecute President Trump on a federal election law violation, when he had absolutely no prior experience with that body of law or its application. Indeed, it remains an open question whether the alleged FECA violation that President Trump was charged with could even be prosecuted as a criminal matter at all. To the extent it can be, the jurisdictional bases for that criminal prosecution lies with federal institutions, like the Department of Justice, not rogue state courts acting unilaterally because they have no idea what the hell they are doing.
What Merchan allowed to happen in his courtroom is unconscionable, disgraceful, and a grave injustice to the integrity of the criminal justice system. The underlying case is rife with reversible error – a sad and sorry situation that demands intervention by a high authority, ideally the Supreme Court, with all deliberate speed.
It would be bad enough for a verdict as grievously and unapologetically as this one was in terms of breaching the Constitution to be handed down against any defendant, at any time. But to have been handed down against the man leading every single reputable poll to become the 47th President of the United States, is an injustice beyond the pale. This is election interference of the highest possible order. Hence, it is incumbent upon the Supreme Court to act swiftly, and overturn the grave injustice committed by an entirely out of line state court, waging a brazen political prosecution, at once. Or else risk catastrophic damage to the integrity of our entire constitutional form of government.
A slightly modified version of this piece was originally published in The Gateway Pundit, and can be found here.
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.