President-elect Donald Trump moved one step closer to beating Alvin Bragg’s lawfare against him on Tuesday as Justice Juan Merchan rescheduled ruling on motions to set aside the politically motivated New York convictions, but it could also be an attempt to trap the president in this unconstitutional prosecution.
Bragg’s prosecution of former President and current President-elect Trump has been plagued by a host of constitutional violations, beginning with his indictment. The Constitution’s Sixth Amendment gives every defendant the right to be adequately “informed of the nature of and cause of the accusation” against him. Yet Bragg’s indictment alleged that Trump committed a felony by falsifying business records with the “intent to commit another crime or to aid or conceal the commission thereof” but never specified what that crime was. That violates the Sixth Amendment, as recognized by the U.S. Court of Appeals for the Second Circuit, which includes New York.
At the end of Trump’s trial, Merchan and Bragg revealed that the second crime was a New York law to “promote or prevent the election of any person to a public office by unlawful means.” But those jury instructions never specified the “unlawful means.” In other words, the second crime now depends on a third crime.
But then Merchan’s jury instructions go on to hint at that third crime: violating the Federal Election Campaign Act (FECA). Specifically, Bragg alleges that Trump made a payment as part of a nondisclosure agreement (NDA) to keep quiet an alleged interlude that the president steadfastly denies, with Merchan instructing the jury that they can consider that an illegal federal campaign expense.
But that too would be unconstitutional. NDAs are not FECA violations under federal law. Only the U.S. Department of Justice (DOJ) or the Federal Elections Commission (FEC) can say otherwise, and they have done the opposite. A county prosecutor in charge of enforcing New York state law cannot create a new federal crime by interpreting federal law differently than the federal government. That violates the Supremacy Clause of the U.S. Constitution.
Merchan then committed another error that would lead to the reversal of Trump’s prosecution on appeal by not allowing former FEC Chairman Brad Smith to testify at the trial to explain to the jury that NDA payments are not illegal campaign expenses, and therefore that even if all the factual allegations were true, it would not violate federal law.
But Merchan’s presiding over this case is also unconstitutional, violating due process. Merchan gave political contributions to opponents of President-elect Trump, specifically the Democratic Party and Joe Biden. Federal judges never give such contributions, and if they did, they would be required to recuse from a matter. That is because the Constitution entitles every defendant to a judge who is fair and impartial, so it violates the Fourteenth Amendment Due Process Clause for a state judge to preside over the prosecution of a politician where he has donated money to that politician’s opponent.
Merchan then violated the Constitution yet again by giving the jury multiple crimes to choose from for this “unlawful means” aspect of the case. He said each juror could look at a menu of options, and so long as the juror found one crime he liked, he could vote to convict Trump — which resulted in 34 felony counts.
But when a person is charged with a felony, the Sixth Amendment commands that a 12-person jury must unanimously vote to convict the defendant of that crime. Merchan’s choose-your-own-adventure instruction saying the jurors could disagree about what the crime is yet still convict Trump is a shocking violation of his constitutional rights.
President-elect Trump’s lawyers are asserting additional legal grounds for reversal as well, but you get the point. This was a thoroughly illegal prosecution from the very beginning, weaponizing law enforcement and the court system in Banana Republic-style lawfare to criminalize political opposition.
For all those reasons, if Merchan refused to set aside the convictions, many people have rightly been waiting to get this case out of Merchan’s courtroom so Trump’s convictions could be thrown out on appeal.
Then came the watershed Supreme Court decision in Trump v. United States on July 1 regarding presidential immunity. Although the court decision merely made official something that constitutional scholars have always believe existed — and the Left has melted down over it, gaslighting voters with ridiculous lies about the court’s decision — it became a new reason to throw out Trump’s convictions. Trump’s lawyers, Todd Blanche and Emil Bove, promptly presented that argument to Merchan as well.
Merchan was scheduled to rule on Trump’s motions on November 12 to set aside the convictions and dismiss the indictment. If he denied all those motions, he was scheduled to impose sentence on the incoming president on November 26, but that would also start the process of appealing this travesty of justice.
Trump’s lawyers wisely protected their client by pushing to delay the possibility of incarceration, given that the Constitution would not allow a sitting president to be imprisoned.
But one of two things is happening, and it is not clear which. One is positive for the president, the other presents a challenge.
On one hand, perhaps Merchan could see the handwriting on the wall. This lawfare was election interference and it failed. Trump was elected to a second term in a modern landslide, with unified government. This prosecution was and is unlawful and so are the convictions, and this pause could be the first step in landing the plane. Bragg and Merchan have been beaten, and they should know it.
On the other hand, this could be an attempt to trap the president. Until Merchan enters final judgment in the case, there are only a few ways to get this case away from him and into a court that will follow the law. If he could freeze the case where it is now, he could wait until after President Trump’s second term, then pull Trump back into his courtroom after January 2029 and attempt to imprison Trump as a private citizen for the rest of his life.
The president has options, but only a few. And his lawyers are currently trying to exercise one such option.
That route is to remove this prosecution to federal court under 28 U.S.C. § 1442. While the facts alleged against Trump in the charge are for a time before he was president — 2016, specifically — some of the (absurd) evidence introduced against him is from his time the White House, courtesy of disgraced convicted criminal liar Michael Cohen.
Trump’s lawyers are attempting to remove the case to federal court on account of that federal defense. (A previous attempt at the beginning of the prosecution was unsuccessful, but that was before the Supreme Court officially recognized presidential immunity.)
A federal trial judge in the U.S. District Court for the Southern District of New York mistakenly dismissed that removal under what is called the Rooker-Feldman doctrine (mistaken because Rooker-Feldman does not apply to state court cases that are ongoing, including cases on appeal). But Trump’s lawyers have appealed that ruling to the U.S. Court of Appeals for the Second Circuit, where it will not be argued for at least another couple months.
If that appeal succeeds, then the president will be in the federal system, where he should decisively win, even if it means needing to go up to the U.S. Supreme Court first. And there are other potential routes to victory as well, given the extraordinary circumstances presented by the Left’s unprecedented lawfare against President-elect Trump.
The coming weeks will tell whether this is a slow surrender or an attempt to tie up the proceedings. If it is the latter, no doubt Donald Trump and his team will be ready.
The cases are People v. Trump, No. 71543/23 in the Supreme Court of New York County, and New York v. Trump, No. 24-2299 in the U.S. Court of Appeals for the Second Circuit.