Judge Merchan’s Potemkin sentencing hearing

A continuation of the judicial warfare against Donald Trump and American voters.

Judge Juan Merchan’s sentencing hearing for President Trump on Thursday confirmed the political nature of the judicial warfare in which he and hundreds of others have collaborated in an effort to bring down Donald Trump. Both Merchan and the prosecutor treated the sentencing hearing as if its purpose was to make a rational and fair determination of what sentence the court should impose. That was a fraud and deception. The hearing’s purpose was not to make a rational and fair decision about anything. Merchan had already decided and announced the “sentence” he intended to hand down. The purpose of the phony hearing was to give the prosecutor a soapbox from which he could pontificate and continue their joint efforts to weaken President Trump, just eleven days before his inauguration.

How we got here.

We don’t need to belabor this point. The story is well known. This is just a quick, if incomplete, overview.

The Democrats pulled out all stops, discarded all precedents and protocols, and politicized the criminal process to one end: getting Donald Trump.

Their strategy of continued judicial warfare against Trump and his supporters never ceased. They tried government-run scams such as the multiple efforts to prevent his name from even being on state primary ballots. They collaborated with unscrupulous prosecutors to bring criminal indictments, using novel legal theories. Their unproven allegations were embraced by the ancien régime media as the gospel truth.

And, of course, they staked their hopes on the mug shot. That would sink him for sure. It was another failure to read the mood of the American people. Instead of becoming a source of shame and embarrassment, Trump’s mug shot instantly became a coveted meme for everything from t-shirts to coffee cups. The mug shot strategy backfired spectacularly by helping ensure his nomination as the GOP candidate.

The raid on Mar-a-Lago and the federal indictment over documents? Those fiascos were coupled with an inability to grasp that the American people recognized how the Democrats had politicized our justice system. Millions of voters saw this unprecedented weaponization of the judicial system and decided that the only way to stop it was to vote for Trump.

The show trial: “Show me the man and I will find you the crime.”

Then we have the New York indictment and trial. It was spawned by a George Soros-backed district attorney, Alvin Bragg, who was elected based on his Stalinist promise to get one man — Donald Trump.

Bragg did not run on a platform of prosecuting a particular crime or class of crimes. Borrowing the tactics of Josef Stalin’s Chief of Secret Police, Lavrentiy Beria (“Show me the man and I will find you the crime.”), Bragg did not follow the usual course of first identifying a crime that would lead to the identification of criminals who needed to be punished. Instead, he singled out one man that he promised to get for any reason, on any pretext, at any cost. As Beria sought to appease Stalin, Harris sought to appease his “progressive” Manhattan voters. He ran and was elected on a platform of getting Trump with …. with …. with something. It didn’t matter what.

The details of the trial, including the judge’s conflicts and the many errors that infected the trial, have been discussed by numerous legal experts, and it is not my purpose to re-hash them here. But please do read George Washington University Law Professor Jonathan Turley’s dissection of Merchan and his kangaroo court here. It suffices for now to say that, with the enthusiastic collaboration of Judge Merchan, the Manhattan jury bought the prosecution’s argument, hook, line and sinker. Trump was convicted on all 34 counts.

A funny thing happened on the way to the election.

After his May 30, 2024 conviction, a funny thing happened on the way to the polls. Several funny things, actually. And to be clear, I am using “funny” in the sense of something unexpected with a twist, not something that is humorous.

What funny things? The debate; the assassination attempts; the palace coup; Biden’s unexpected and unilateral anointment of the worst possible candidate; the Supreme Court’s immunity decision; the dismissal of the documents case in Florida (the FBI not having found anything incriminating in Melania’s underwear drawer); the exposure of Fani Willis’ and her lover boy’s extracurricular escapades; and the ultimate collapse of all the other criminal cases.

The inevitable result was that on November 5, Trump not only won the electoral vote, but the popular vote as well, including all seven of the-called swing states.

The Democrats’ worst nightmare had come to life. Assassination had failed, unrestricted lawfare had failed, $1.5 billion was down the drain, and Donald J. Trump was returning to the White House.

But there was a glimmer of hope on the Democrats’ horizon — Trump was still facing sentencing by a Judge who obviously was out to get him.

The sentencing hearing

This was unlike any other sentencing hearing I have ever seen or heard of. Before the hearing Merchan had informed the parties that his “inclination” was to impose a sentence of “unconditional discharge.” That unusual sentence requires a bit of explanation.

Under Art. 65 of the New York Penal Code, a trial judge may decide that a convicted person is guilty of the crime charged and should be convicted, but that they should not be sentence to any confinement. Think of a person who commits a misdemeanor tax code violation, but who has repaid the full amount owed. In such cases, the judge might condition the lack of confinement upon the defendant’s payment of a fine, future good behavior, or other conditions. But under Art. § 65.20, the judge also may release the guilty party without any confinement or any conditions, “if the court is of the opinion that no proper purpose would be served by imposing any condition upon the defendant's release.”

This allows a convicted criminal defendant to walk out of the courtroom with no prison sentence, no fine, no probation, no punishment whatsoever. But the person still has a conviction on their record. Such “no punishment” sentences are “incredibly rare” in felony cases. In a felony case involving 34 counts, they were virtually unheard of, until last Thursday.

The prosecution followed Merchan’s lead by recommending an unconditional discharge for Trump. So, before the hearing began, both the prosecutors and Judge Merchan knew that any punishment for Trump was off the table.

But if you heard the argument that an Alvin Bragg assistant, one Joshua Steinglass, made to support the sentencing, you would not know that it was preordained — and that he had agreed — that no punishment would be imposed on Trump.

Steinglass’ argument supposedly was to assist the judge in deciding an appropriate punishment for Trump. You can listen to Steinglass’ argument here or below (both beginning at 5:11).

It is impossible to tell from Steinglass’ rhetoric what kind of sentence he is advocating, other than the most severe possible punishment for 34 felonies.

Here are some of the Steinglass’ arguments, supposedly made to help the judge decide on a fair sentence. As you read these, ask yourself if these are arguments any legitimate prosecutor would make in support of a no-punishment sentence.

• “The defendant’s conduct before during and after this trial also merits consideration.”

• “Far from expressing any kind of remorse for his criminal conduct, the defendant has purposely bred disdainment [sic] for our judicial institutions and the rule of law.”

• “He has characterized these proceedings as corrupt, rigged, witch hunt or sham too many times to tabulate.”

• “The defendant’s rhetoric has only ratcheted up since this court’s ruling on his motion to dismiss.”

• “He has been unrelenting in his unsubstantiated attacks on this court and its family, individual prosecutors and their families, the witnesses, the grand jury, the trial jury, and the justice system as a whole.”

• “The defendant has used dangerous rhetoric in leveling accusations of intentionally unlawful and unconstitutional conduct on the part of this court and the prosecution.”

• “As this court has noted, the defendant’s conduct constitutes a direct attack on the rule of law itself.”

• “The defendant has publicly threatened to retaliate against the prosecutors who have sought to hold him accountable in this and other matters and the courts who have endeavor to fairly and faithfully adjudicate these matters.”

• “Such threats are designed to have a chilling effect to intimidate those who have the responsibility to enforce our laws in the hopes that they will ignore the defendant’s transgressions because they fear that he is simply too powerful to be subjected to the same rule of law as the rest of us.”

• “This defendant has caused enduring damage to public perception of the criminal justice system and has placed officers of the court in harm’s way.”

• “The defendant sees himself as above the law and won’t accept responsibility for his actions.”

After this take-no-prisoners screed, Steinglass wrapped up by recommending a sentence of “unconditional discharge,” i.e., no punishment.

What exactly was this argument supposed to be supporting? The above arguments about Trump’s supposed “attack on the rule of law,” his “threats” designed “to intimidate,” his “unsubstantiated attacks” on virtually everyone including the court, his threats “to retaliate against the prosecutors,” and his intentional infliction of “enduring damage to public perception of the criminal justice system [that] has placed officers of the court in harm’s way” all support the maximum penalty, a figurative ‘death sentence.’ These are not the arguments a prosecutor makes for a defendant whom he wants to walk free with no punishment. But Steinglass knew that Merchan was not going to sentence Trump to anything and that he was going to walk free.

So why did Steinglass make, and Judge Merchan tolerate, this phony give-him-the-death-penalty argument when they both knew that any punishment was off the table?

There was only one reason for this argument. To further smear the incoming President of the United States. To weaken him in his dealings with Congress, with political opponents of all stripes and foreign leaders. To be able to label him as a “convicted felon” for all the world.

And, of course, that is exactly what has been attempted. Trump was Sentenced as a Felon! The New York Times was Johnny-on-the-spot: According to it, the sentencing “formalizes” his “felon status.” So, when The Times and others previously referred to Trump as a “felon,” he was only an informal felon, you see.

The other press organs of the world gleefully jumped on board. They trumpeted from the roof tops: “Trump, Convicted Felon!” See MSNBC (“Humiliation: Trump's now the first president-elect to be a convicted felon”); Yahoo News, headlining USA Today (“Donald Trump is a convicted felon. We did it, America! We elected a crook!”); Le Monde (“first former US president to be a convicted felon”); USA Today (“first U.S. president to take office with a felony criminal conviction”); and on and on ….

Merchan, Bragg, and Steinglass all knew that to put Trump in jail, even for a few days before he took office, would create an even greater aura of martyrdom, and not just among die-hard MAGA supporters. The same is true if Merchan had fined him without any confinement. So, they fired the only arrow left in their quiver — a Potemkin sentencing hearing where they would go through the motions and Merchan could pretend, in his words, to “consider the facts of the case, along with any aggravating or mitigating circumstances.” And Steinglass gave him the above bucket-full of supposed “aggravating circumstances,” but they all were absolutely meaningless because every person in the courtroom knew that even if they all were true, Merchan was not going to impose any punishment.

It was all pretend-justice, but it gives the Dems and other Trump enemies a catch phrase — “convicted felon” — that they can throw down whenever their substantive arguments fail.

They will continue the show.