Opinion: Trump’s Trial Judge Tied Himself Into a Gordian Knot
The sentencing of former (and future) President Donald J. Trump in a Manhattan courtroom on Friday was the culmination of a titanic legal saga that tested, and arguably rent, the legal and political structure of the United States. But while one might have expected that such a struggle would conclude with a roar, it instead ended with a quiet whimper. It didn’t have to be that way.
Manhattan District Attorney Alvin Bragg had revived the election interference case against Trump after first nearly killing it himself. Originating under Bragg’s predecessor, Cyrus Vance, the case arose from Trump having paid the adult film actress Stormy Daniels money to stay silent about their sexual encounter so as not to damage his 2016 presidential campaign.
When Vance left office in November 2021, an investigation was well underway and a grand jury empaneled. But when Bragg took office, he appeared to decide against charging Trump—a decision that cost him the resignation of two top prosecutors (at least one of whom openly revealed that his resignation was over Bragg’s hesitancy).
Despite that early caution, Bragg’s office ultimately indicted, charged and successfully tried Trump, securing convictions on 34 felony counts. It was a tour de force display for a storied office. And it was not an easy victory. Bragg’s office contended not only with a critical witness, Michael Cohen, who carried the baggage of a prior conviction but also with the sexist and misogynistic biases against Daniels.
At trial, Trump’s lawyers seemed primarily interested in auditioning for positions in a future Trump administration. They failed to make any real dents in Cohen’s credibility; their cross-examination of Daniels, replete with ill-willed and bumbling efforts to discredit her, seemed to make the case against their client worse. Judge Juan Merchan did an admirable job of running proceedings and avoiding the landmines planted by Trump. The jury, too, did an excellent job in a case of unparalleled public scrutiny, returning a verdict in the very reasonable time of two days.
Power and wealth create many obstacles in the criminal justice system. Law enforcement is often loath to believe the “little people,” and prosecutors are often afraid of taking on high-powered and well-funded defense lawyers. But once such a case goes forward and the defendant is convicted, getting to sentencing is a mostly mundane process. Not so here.
The timing was, as the saying goes, everything. Judge Merchan postponed the original sentencing date to allow for arguments by Trump’s lawyers about the potential relevance of a July Supreme Court decision creating, for the first time, a doctrine of Presidential immunity. (The relevance of that decision was to raise the question of whether some of the evidence against Trump might have been impermissibly admitted.)
In doing so, Merchan set off a series of arguments and re-arguments that delayed sentencing until Election Day was fast approaching. He then delayed it further because of that timing, and further still because Trump won the election. Along the way, he was presented with a mind-numbing array of proposals put forward by the defense and prosecution: among them Trump’s oft-repeated request to dismiss the case; a delay in sentencing until after Trump’s second term of office ended; even a suggestion by prosecutors to abate the case—a process used in some states when a defendant dies before sentencing.
Naturally, this delay also gave Trump time to ask the Supreme Court to enjoin the sentencing altogether which the high court refused—barely—in a 5-4 vote earlier this week.
Merchan’s eventual solution to this Gordian knot of his own creation was to announce prior to sentencing that he would not sentence Trump to anything at all. Invoking an “unconditional discharge” under New York State law, Merchan allowed the jury verdict to stand, Trump’s conviction to become final and for the conviction to follow the natural course of appeal: No conditions of release, no probation, no community service and certainly no jail time were involved. Only the mere fact of the conviction survived. Given this, it was no surprise that the sentencing itself was quite muted. Trump was relatively low-key—appearing by video—and Merchan merely wished Trump “Godspeed” in his next term of office.
This “non-sentencing” will be viewed by Trump and his supporters as vindication of their view that the case was a “non-case,” while those who have waited for Trump being held criminally accountable will see it as another example of the president-elect benefiting from a system of criminal justice that favors the rich and powerful.
Merchan’s decision may have helped him escape the Supreme Court stopping the sentencing all together. But it also raises the tantalizing question of whether a July sentencing would have deprived Trump from further free publicity (and opportunities to rally his supporters) which might have affected the election’s outcome. Merchan might have done well to remember that Alexander the Great’s solution to the original Gordian knot was not to keep tangling it, but cut through it—with a sword, no less. Merchan should have acted similarly, boldly and swiftly sentencing Trump to an appropriate punishment long before November 5, as originally intended.
