Doth the Court Protest Too Much?

What strikes us about Justice Juan Merchan’s order delaying until after the election the sentencing of President Trump in the Stormy Daniels hush money case is the last paragraph. That’s where he claims his decision “should dispel any suggestion” that the Court “will have issued any decision” to give an advantage or disadvantage for any political party or any candidate for any office. Writes he: “The Court is a fair, impartial, and apolitical institution.”Just for the record, we doubt there’s a single upright-walking biped at the entire county of New York who would, in private, credit that claim. That His Honor felt the need to make the claim underscores the point. The trial of the 45th president on the Stormy Daniels payments has been political from the get-go — an example of one of the worst abuses there is in law, articulated by the Soviet Union’s Lavrenti Beria as “show me the man, and I’ll show you the crime.”This whole trial has been about an effort to find a crime with which to accuse a specific individual whom the prosecutor and his political party detest. And whom they feared — and still fear — might yet win a second term. This was announced publicly by the district attorney of New York County, Alvin Bragg, when he ran for office, at least in part on a platform of planning to prosecute the 45th president. Mr. Bragg secured the Democratic nod for district attorney — tantamount to winning the general election — with boasts during the primary season that he had “sued Mr. Trump’s administration,” as the Times reported, “more than a hundred times.” As a candidate Mr. Bragg spoke in 2020 of the “staggering” number of legal issues “swirling” around Trump, noting that the “matter involving” the president’s ex-fixer Michael Cohen “stood out.” Mr. Bragg observed that “presumably, the evidence is there,” even while vowing not to “prejudge” the case. Yet “if they’ve already said it in a charging instrument,” he explained, “I presume it could be, you know, accurate and charge ready.” To appeal to the most partisan among Democratic primary voters, Mr. Bragg boasted that he had “investigated Trump and his children and held them accountable for their misconduct with the Trump Foundation.” This was by way of assuring the voters, Mr. Bragg said in a candidate forum in late 2020, that “I know how to follow the facts and hold people in power accountable.” What about the presumption of innocence to which all defendants, even a former president, are entitled. As these columns have asked, “With comments like this, did Mr. Bragg breach the ethics of his office by in effect running on a platform to prosecute Mr. Trump?”All that was before Mr. Bragg was elected district attorney. Even then, it wasn’t easy. All the prosecutors who might have brought the case — but weren’t bound by campaign promises to get the former president — had refused to levy charges. Mr. Bragg, having taken the matter to the voters, finally settled on misdemeanor charges for which the statute of limitations had passed. Then he fused them with another infraction to create a felony.No wonder a Wall Street Journal editorial noted after Trump’s conviction that “normally a felony conviction would be politically fatal for a candidate,” but that “normally a prosecutor wouldn’t have brought this case.” The Journal also noted that Mr. Bragg “ran for office as the man ready to take on Mr. Trump.” It raised concerns, the Journal said, about the “precedent of using legal cases, no matter how sketchy, to try to knock out political opponents.”Mr. Bragg’s prosecution is the kind of legal prestidigitation that Beria would have loved. It suggests, too, the kind of targeted prosecution against which FDR’s attorney general, Robert Jackson, warned prosecutors. Against this background Judge Merchan looks silly protesting that his decision to delay the sentencing isn’t political. Who’s he kidding? The part of justice for Judge Merchan would have been to dismiss this case long ago as a non-justiciable political question.

Doth the Court Protest Too Much?

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