RUTHFULLY YOURS

I observed in a post this week that, compared to some of Donald Trump’s other recent complaints about Judge Juan Merchan, there is more substance to his grousing about the judge’s denial of his request that the trial be adjourned for a day so that he may be in attendance at the United States Supreme Court next Thursday, April 25. That’s the day the justices will hear argument on the question of whether the former president has immunity from prosecution in the 2020 election-interference indictment brought in Washington, D.C., by Biden Justice Department special counsel Jack Smith.

There are competing legal and practical considerations here.

Practically speaking, if I’m a Trump appellate lawyer, I would prefer that he not come to the Supreme Court argument. I don’t think the justices would appreciate the spectacle. I am thinking in particular of the three justices Trump appointed (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett), who would inevitably be on the receiving end of looney left-wing bloviating that Trump was in attendance for the purpose of pressuring them — bloviating helped along, naturally, by Trump lawyer/flack Alina Habba’s clueless remark in January, in connection with Colorado’s effort to remove Trump from the ballot under the 14th Amendment’s insurrection clause, that Kavanaugh would “step up” for Trump because the former president “fought for” his nomination and “went through hell to get [him] into place” on the Court.

Habba, who habitually digs such holes for herself, tried to dig out of this one by maintaining that Kavanaugh and his fellow justices would follow the law (as they did in the Colorado case). And it should be obvious that none of this sound and fury will influence how the justices rule on the immunity issue.

On the other hand, I believe that, though Trump is unlikely to win on immunity, he will get a more sympathetic hearing from the high court. For the reasons best explained by Jack Goldsmith, the Supremes are likely to be more attuned than the D.C. Circuit was to the perils of prosecuting former presidents over official acts. I don’t think Trump’s presence at the session would help that cause. Indeed, it might inspire some of the justices — especially progressives Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — to mock some of the hyperbole Trump has uttered and posted about immunity; that wouldn’t be a good look for him as he sat in the courtroom.

Now, let’s move on to the legal considerations.

The matter of preventing Trump from attending the Supreme Court session is a good example of what I tried to get at in a column last month: We tend to look at the Trump criminal cases one by one as sundry issues arise. Not nearly enough attention has been paid to the cumulative toll the lawfare campaign is taking on the former president’s due-process rights. This can only be attributed to Trump derangement. The media–Democrat complex would be in full froth if an enemy-combatant jihadist or an illegal alien were being put through a ringer of four simultaneous complex prosecutions — all of them strategically timed to coincide with the political calendar in a manner expressly forbidden by, for example, Justice Department rules. It is inconceivable that this can be done without impairing Trump’s constitutional rights to attend proceedings, review discovery, prepare for trials, and otherwise meaningfully participate in his defense.

Memo to Judge Merchan and his colleagues: When prosecuting authorities engage in such abusive tag-teaming, the judiciary’s job is to protect the rights of the accused, not to aid and abet a campaign to exploit judicial proceedings as a political weapon.

Defendants have a right to attend appellate proceedings. It is not an unqualified right. It is a commonplace for convicted defendants to be absent from the oral arguments of their appeals, especially when they are serving sentences of incarceration. But if they are at liberty, they have a right to be present. There is no requirement that they be present — it is not like a criminal trial, at which they are generally required to be in attendance at all times. But if they wish to attend they are permitted to attend.

On that score, it is unfair to claim that Trump is asking to attend the Supreme Court argument just to delay the New York trial or goad Judge Merchan. As the de facto Republican nominee in the 2024 presidential campaign, Trump is one of the busiest people in the country. Yet he put that on hold back in January, even as primaries loomed, so he could be in attendance in the D.C. Circuit Court of Appeals when it heard argument on the immunity issue. This is a matter of critical importance to him, just as it is critical to the ongoing case against him.

The ongoing case against him. This is a salient distinction. Trump is not a post-conviction appellant who can’t be in attendance at the Supreme Court because he is in a penitentiary doing his time. Trump is a criminal defendant. The matter before the Supreme Court, as before the D.C. Circuit, is not a review of a criminal trial that has already occurred; it is a critical stage in an ongoing criminal prosecution — it doesn’t get any more critical than whether Constitution allows the criminal trial to go forward, which is what’s at issue in the immunity case. It is black-letter constitutional law that a criminal defendant has a right to be present at all critical stages of the proceedings against him, through and including trial and the imposition of a sentence.

Remarkably, when Merchan denied Trump’s application, he curtly told defense counsel that Trump had to be present in the New York courtroom next Thursday because he “is a criminal defendant.” Well, he’s a criminal defendant in the Washington case, too. Notwithstanding Merchan’s rote repetition of false Democratic Party talking-points that the Washington case is Trump’s “federal insurrection matter,” one would think the judge knows — since he claims to have studied the case — that Trump is a defendant in it with a constitutional right to be present at its critical stages.

If the immunity issue were being argued before Judge Tanya Chutkan, the trial judge in Smith’s election-interference case, it would be perfectly obvious that Trump had a right to be present — and Judge Chutkan would be playing with due-process fire if, over his objection, she presumed to hold such a hearing in his absence. Why should it be any different because the immunity issue has now been elevated to the nation’s highest court? If anything, one would think that increases Trump’s constitutional interest in being present.

And why does it appear he won’t be present? Because Judge Merchan won’t adjourn for a day the trial of a case that elected Democratic progressive prosecutor Alvin Bragg waited five years to bring so that it would coincide with both the 2024 election campaign and the criminal proceedings he knew would inevitably arise out of the investigations his fellow Democratic prosecutors were very publicly pursuing against Trump.

We all know Merchan takes a day off from the trial every week. You know why? Because he thinks it is important to retain his Wednesday docket of cases involving mentally ill people whom he monitors as they seek treatment in hopes of convincing the authorities to dismiss pending charges against them. Don’t get me wrong: Merchan’s commitment to and aspirations for the subjects of the weekly mental-health docket are admirable. But implicit in his decision to keep attending to that docket is his determination that some cases are important enough to suspend the Trump criminal trial for a full day.

Fine . . . but then why does that apply only to cases Merchan cares about and not a case Trump not only cares about but in which he has a constitutional right to attend proceedings?

How can it be that Merchan gets to put the Trump trial on hold because people who are hoping not to be prosecuted warrant his attention, but he won’t put it on hold so that a former president of the United States can attend a session of the United States Supreme Court as it decides whether he can be prosecuted in a case of enormous consequence to November’s presidential election?

Doesn’t that seem a tad presumptuous on Merchan’s part? Doesn’t it seem like Bragg — out of concern for the record being built regarding the roughshod ride prosecutors have taken over Trump’s due-process rights — should join the defense in urging Merchan to adjourn the trial for a day so Trump can go to the Supreme Court next week if he wants to?

Judge Aileen Cannon is presiding over Biden DOJ special counsel Smith’s Florida prosecution of Trump on charges of unlawfully retaining national-defense intelligence documents. Last month, as I detailed in the above-linked column, Judge Cannon had to admonish Smith’s staffers regarding Trump’s right to be present at required proceedings about the admissibility of classified documents in the case. Prosecutors are anxious to push through these proceedings, even though Trump is on trial in Bragg’s New York case. After all, why should Trump’s constitutional rights be permitted to interfere with Smith’s goal of putting Trump on trial — at least once, maybe twice — prior to Election Day?

Granted, Cannon is a Trump appointee. Still, she really shouldn’t be the only berobed lawyer in the lawfare saga to grasp that the principal duty of judges in the United States is to protect Americans from government overreach. Judge Merchan seems to get that point every Wednesday, when he seeks to shield defendants from heavy-handed prosecutions. How about the rest of the week?