By Steve BermanJudge Juan Merchan keeps popping up in trials related to former president Donald Trump, like an infected toenail. Now we can attribute this to “no nonsense” like the mainstream media does, but I have to wonder if Merchan enjoys torturing Trump and those connected to him. Before the “hush money” trial that Manhattan DA Alvin Bragg–who, along with Merchan, releases thousands of undocumented immigrants back onto the street when they loot Macy’s to sell the stolen goods right on the street in front of the store–brought to “get” Trump for some kind of paper crime, Merchan presided over the Trump Organization trial that socked it with a $435 million judgment. So, as Time wrote in an understatement: it “also made Merchan familiar with the players in Trump’s orbit.”
Merchan’s instructions to jurors, who now have the–is it 34?–count felony indictment to decide, will be given today before deliberations begin. It’s very likely Merchan will tell jurors not to decide whether Trump committed any actual crimes, only that his intent was to cover up the truth and deny the public knowledge of the Stormy Daniels claims. Basically, Merchan is going to set the bar so low that it will be one step removed from a directed verdict of guilty.
The facts here are not really in dispute. Trump paid $130,000 to Michael Cohen. Cohen paid it, through cut-outs and front companies, to David Pecker’s AMI lawyer, who paid it to Daniels. Cohen also stole tens of thousands of dollars from the Trump organization. Bragg’s prosecutors claim that Trump knew about every penny that left his bank account, yet Cohen was able to steal a lot of pennies. But none of that is supposed to matter. The jury is supposed to find Trump guilty because he wrote the checks, and didn’t label them prominently in the ledger “hush money to keep my campaign from being smeared.”
If anything like this had ever gone to trial for the Hillary Clinton campaign, along with the DNC paying Fusion GPS through white-show law firm Perkins Coie, to purchase the “Steele Dossier” that was used by the FBI to open “Crossfire Hurricane” and entrap the president-elect in a concocted Russia collusion, you’d never get a judge saying that was some kind of felony (though it’s probably scores of felonies). But with Trump, over $130,000, for which Cohen already went to prison (serving most of his sentence from Park Avenue), Merchan will instruct the jury to focus on the paper, not the motive.
The jury has a few lawyers, a few engineers, and a teacher on it. These people (I pity them) were not sequestered during the trial. They went home every night. And Judge Merchan seems willing to let them go home every night during deliberations. This was his screw-up that will likely throw the whole trial out in appeal, or lead to a mistrial in a hung jury.
In the courtroom, Trump was subdued. He made a few comments at the beginning, and his attorneys got slapped down by the judge. Merchan hit Trump with $9,000 in fines for violating “gag orders” that prevented him from talking about witnesses or the judge and his Democrat-funded family. The jury, though they may have been out of the room for those proceedings, certainly knew about them. They’d go home every night, told not to watch or read anything about the trial, but how could you not? These people need to be anonymous, but unless they walk around with a sandwich board reading “Trump juror, don’t talk to me” how can they avoid hearing everything that goes on the trial?
Trump spoke nearly every day outside the courtroom. The judge and lawyers had sidebars and conferences outside the hearing of the jury, but the media reported everything they observed. The jury picked that up. Not sequestering the jury, then expecting them to ignore all the “evidence” they didn’t hear is a recipe for a mistrial. One of the lawyers on the jury is bound to get hung up on the finer points of the law, despite being told as a juror they cannot decide law. This is why lawyers are very rarely called as jurors–most are summarily excused.
But the Trump jury has not one, but two lawyers. And they were sent home every night to bathe in the wall-to-wall press coverage of the trial they are to decide. Every one of them should be disqualified and dismissed, and the trial thrown out as a mistrial. But it won’t happen. Merchan will instruct the jurors to find Trump guilty (in so many words). They will then retire to a room to discuss the case (which they’ve likely privately–against the rules–discussed in the hours they’ve sat in that room).
There is no way these jurors are going to agree unless every single one of them lied on the 40-question interrogatory the judge gave them before the trial began. So it’s going to be a hung jury, or it’s going to be a railroad. Either way, there’s no way it’s ever been fair.
Doubtless, Merchan knows this. He knows that by not sequestering the jury, he is making Trump’s appeal as easy as it can be. Within days of a guilty verdict, the jurors will be on the morning news shows. They’ll tell everyone how they heard and saw things they should not have heard or saw during the trial. They’ll pretend these things didn’t affect the verdict, but of course they’re not being honest. So the trial is already tainted.
My bet is on a mistrial, rather than an appeal. But either way, I don’t see how it’s going to stick. Merchan screwed up and he knows it. The trial is a swing and a whiff, and it’s all political. Merchan doesn’t want to be the guy who sent Trump to prison (even if he wishes it personally), because that won’t be good for his career. So he left the jury free to get influenced. He made a fatal mistake, and he made it with the knowledge it gets him off the hook. He gets to tell the jury to convict–as much as a judge can do that–while leaving the trial completely defective. Merchan gets his cake to have, and gets to eat it too.
But the media is going to treat this trial as if it’s perfectly straight as an arrow if the jury comes back with a guilty verdict. If it’s a mistrial, they’ll spasm in hysterical seizures. We all know this to be true. What a total and utter waste of everyone’s time.
Bragg never should have brought this case, like his predecessor, Cyrus Vance Jr., didn’t. They should have let Jack Smith go first. Now they’ve botched it all up, because Merchan wouldn’t sequester the jury.
Follow Steve on Twitter @stevengberman.
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