Andy McCarthy: Suppressing a story is not illegal
Former federal prosecutor Andy McCarthy provides legal analysis on former President Trump's New York criminal trial on 'The Story with Martha MacCallum.'
First things first: The most important thing you can read this week, if you are an American concerned with the rule of law, is Fox News contributor Andrew McCarthy’s essay, "How Judge Merchan Is Orchestrating Trump’s Conviction."
What McCarthy chronicles is the absolutely shocking attempt by trial judge Juan Merchan and Manhattan District Attorney Alvin Bragg to secure, by any means necessary, a conviction of former President Donald Trump. Only mind-readers can discern the real motives behind Justice Merchan’s incomprehensible abuse of his powers.
(The trial court judges in New York are denominated "justices," so don’t confuse Merchan with the state’s equivalent of one of the nine justices on our federal Surpeme Court. He is not one of the seven highest judges in the Empire State which together comprise the state’s highest court. He is not even an appeals court judge. Merchan is just an ordinary trial court judge who is never going to be confused with a great legal mind, or, in my view, even an average fair-minded criminal court "hanging judge.")
NY VS. TRUMP: A TRIAL IN SEARCH OF AN IMAGINARY CRIME
Merchan seems to me to be a partisan who has gone rogue, but who is still entitled to the respect due anyone wearing a robe in any court. It is necessary to note that Merchan made nominal contributions to the 2020 United States presidential election, donating $15 to Joe Biden's campaign, $10 to the "Progressive Turnout Project," and $10 to "Stop Republicans."
I find these gestures —and they are just that, gestures intended as symbolic acts, of what I do not know— astonishing. In my opinion, they ought to have disqualified him from the jump because they are intended to tell you who he is: a partisan, even if not a particularly deep-pocketed partisan. He wanted it known. He wanted it on the record. So, notice it and ask: Why did he do that save to signal to one and all what he thought of the 2020 election?
This trial is the sowing of the wind. Other political judges and prosecutors will reap the whirlwind. Everyone will lose. It is, for those who profess to love the rule of law, a disaster.
Bragg is, by contrast, just another political prosecutor, a political animal feeding his base voters, and we have grown used to their appearances on the public stage. Perhaps Merchan is suffering from "Trump Derangement Syndrome." We don’t know and can’t know because questioning him is beyond anyone’s ability, unless somehow Trump down the road can bring a Section 1983 action against both Merchan and Bragg for violation of his constitutional rights under color of state law.
But unless one or more brave souls on that jury see through this fraud of a Soviet-style show trial and hangs the jury, many convictions are coming Trump’s way, and the Merchan/Bragg combo is going down in American legal history along with the names of every other disreputable judge and prosecutor you can recall from American history.
It is very unlikely that such a juror will emerge given Merchan’s outlandish manipulations of the ordinary process due any criminal defendant, but we can pray someone rescues America’s reputation from this circus. It will take a "12 Angry Men" sequence of deliberations inside the jury room after the jurors have received their instructions.
Given the rulings that Merchan has already made and that McCarthy recounts, it is hard to imagine any juror save one of the two lawyers on the jury seeing through the parade of prosecution witnesses and the greatly circumscribed ability of the defense to impeach their credibility and thus present Trump’s defense.
The former president will eventually see all convictions that arrive after this circus concludes overturned, but by then the impact on our elections will be permanent. Merchan seems bent on seeing Trump handcuffed and photographed, detained if only for a day or even one single photograph. In his single-minded quest, Merchan has done everyone in the country a grave disservice.
To fully appreciate what damage Merchan is doing, you would need to have taken both Constitutional Law and Criminal Procedure, and from a good professor or two. In brief: Every Constitutional Law class in every law school in America should begin with an obvious question to the class that is in fact two questions: How did you get here? (Every Criminal Procedure class should continually raise the question: Why do we make it so hard to convict the accused? But let’s stick with the average "good" ConLaw class.)
Part one of that "obvious question" to new ConLaw students concerns the individual law student. He or she is at the end of a long line of their personal decisions as well as decisions by their parents, grandparents, great-grandparents and on down their genealogical tree until it passes into the mists. We are all sitting where we are sitting and reading what we are reading today because of hundreds of thousands of choices made over tens of thousands of years. Even the law students with the best grasp on their family history will eventually run into a wall beyond which they cannot see, but appreciating the path they actually do know is crucial to them feeling gratitude towards whomever propelled them forward, and not just in their youth, but in the youths of their parents, etc. To be a law student in America should mean to be extremely grateful to a combination of fate and forebears. And to resolve to uphold the rule of law as a consequence of that gratitude.
NY VS. TRUMP: CROSS EXAMINATION OF DA BRAGG'S FIRST WITNESS UNRAVELS IMPORTANT TRUTHS
The not-so-obvious part two of the "obvious question" is: Where did this Constitution and all these decisions in this very thick casebook come from? Many professors begin their classes with the opinion of then-Chief Justice John Marshall in the 1803 decision of Marbury v. Madison which established the doctrine of judicial review. Even with a moment’s thought, though, the student should intuit that this should not be the beginning point because there is quite a gap of years between 1803 and the ratification of the Constitution in 1789, it’s drafting in 1787, and the even earlier —yet still central to the story— Declaration of Independence in 1776.
One of only 25 known surviving copies of the Declaration of Independence which were printed July 4, 1776 sits on display at Sotheby's June 22, 2000 in New York City. (Chris Hondros/Newsmakers via Getty Images)
That’s just the first and second layer of the "obvious question" though. To learn Constitutional Law well requires that students understand, at a minimum, the general outline of the civilizations that produced the generation of the Framers. That means knowing at least the rough outline of the history of the Jews, the ancient Greeks, the Romans and of Great Britain, for those four civilizations are the direct ancestors of our general Western and our specifically American legal cultures.
It is not necessary to actually know these things to pass a state Bar Exam. To do that, it is only necessary to know the rough outlines of the still binding precedents of the United States Supreme Court. That minimum deposit of knowledge should make it possible to win through to a law license if that state’s bar examiners choose to test, say, the limits of the Commerce Clause.
But to understand the genius of the Constitution, it is necessary to grasp just how unlikely was its emergence in 1787 and its ratification in 1789. To know why the rulings of the trial judge in Manhattan are so egregious, an observer would have to have at least a handle on what the Star Chamber was, how it functioned and why the ratification of the Constitution was premised on a promise of amendments, one of which, the Fifth, guaranteed to every citizen of the United States the following:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
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The Fourteenth Amendment, because of its guarantee that "nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" binds the courts of New York to the requirement of due process of law first stated in the Fifth Amendment.
Former President Donald Trump is not receiving the process owed him by the Constitution of the United States, which is why the conviction will be reversed down the road. (McCarthy argues elsewhere that Trump is also being denied his rights under the New York State constitution, specifically a "due-process provision meant to prevent exactly what Bragg has done here: force a defendant to go to trial without being put on notice of the charge."
Why should political opponents of Trump care? Why should even those most distraught over the increasing likelihood of a second and final Trump term be distressed?
Simply put: That which gets rewarded gets repeated. Humpty Dumpty and all that. The "Roman Revolution" and the erosion and eventual collapse of the Roman Republic’s mos maiorum. Having to sleep in the bed you made. Add in any cliché or historical reference you care to throw in, the point is the same. Unless firmly and quickly ended, this abuse of process by a partisan judge and a partisan prosecutor is going to continue —against candidates of both major parties, and perhaps against all future "former presidents."
In short, this trial is the sowing of the wind. Other political judges and prosecutors will reap the whirlwind. Everyone will lose. It is, for those who profess to love the rule of law, a disaster.
If a former president and current nominee of an out-of-power party can be put through such a circus within six months of an election, do you really think this is the last time that will happen?
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I don’t expect or, of course, condone violence in the aftermath of this trial or the fall’s election. Prophets of such doom are themselves likely to hold extreme views. But Juan Merchan and Alvin Bragg and their colleagues in this off-the-rails proceeding will have injected such deep bitterness into the country’s politics that it will take at least a few election cycles to purge the anger and perhaps as much as a generation or two to forget and recover from this abuse of process.
Manhattan District Attorney Alvin Bragg speaks during a news conference on Thursday, March 7, 2024, in Manhattan, New York. (Barry Williams/New York Daily News/Tribune News Service via Getty Images)
We will not know this side of heaven what Merchan and Bragg thought they were doing. But what they have already done is enough to put them down in the column of those who put politics ahead of law, to the great and lasting detriment of the Republic.
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Hugh Hewitt is host of "The Hugh Hewitt Show," heard weekday mornings 6am to 9am ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh wakes up America on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable hosted by Brett Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his forty years in broadcast, and this column previews the lead story that will drive his radio/ TV show today.
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