What Should Trump Do?

This morning, Judge Juan Merchan fined Donald Trump $9,000 and threatened to imprison him for violating Merchan’s gag order in the farcical Stormy Daniels case. The order prohibits Trump from commenting publicly on witnesses, jurors or prospective jurors, prosecutors (other than the District Attorney), staff members of the court or District Attorney, or family members of various persons. The offending statements by Trump were mostly reposts of comments by others on Truth Social.

The gag order strikes me as a plain infringement of Trump’s First Amendment rights, despite Judge Merchan’s alleged sensitivity to those rights. Any other litigant or criminal defendant would have a right to comment on trial proceedings, so why not Trump?

Judge Merchan has also required Trump to be physically present in court each day of the trial, for the evident purpose of preventing him from campaigning, and thus gaining an edge on the senile Joe Biden. But Merchan graciously “allowed” Trump to attend his son’s high school graduation.

The whole prosecution is a farce. Alvin Bragg has charged Trump with filing false corporate documents, a misdemeanor on which the statute of limitation has run. In order to resurrect that dead claim, Bragg’s indictment says that the documents were filed to cover up another crime. But what was that crime? Incredibly, the indictment doesn’t say. The jury likely is getting the impression that the “crime” was conspiring to steal the 2016 election by trying to suppress bad news about Trump. But of course there is no such crime; if there were, the Capitol would be sparsely inhabited. What we have here is sheer election denialism by the Democrats.

Andy McCarthy argues that Bragg’s prosecution violates both the United States Constitution and New York’s Constitution:

Bragg, an election denier, is trying to convict Trump of a crime that is not charged in the indictment — to wit, conspiracy to steal the 2016 election by suppressing negative information in violation of federal campaign law. This violates the Fifth Amendment to the United States Constitution, which requires a felony charge to be spelled out in an indictment whose criminal elements have been established by probable cause to the satisfaction of a grand jury. Here, the problem is not just that there is no indication the grand jury was presented with an election-theft conspiracy offense; there is no such conspiracy crime in New York penal law. As a state prosecutor, moreover, Bragg has no jurisdiction to enforce federal law — as to which Congress vested “exclusive” criminal- and civil-enforcement authority, respectively, in the Justice Department and the Federal Election Commission.

Worse still is that Judge Juan Merchan is not just letting Bragg get away with this; he is consciously abetting the district attorney — thus adding heft to Trump’s claim that Merchan is deeply conflicted by political bias.

Andy goes on to make a technical argument under New York’s Constitution. His legal arguments are well taken, but the reality is perhaps even more stark. This prosecution is entirely fraudulent. It was cooked up by the Democratic Party to interfere in the 2024 presidential race. Alvin Bragg and Judge Merchan, along no doubt with other Democratic Party officials, are in on the scheme. The prosecution is entirely a political act, and has zero legal legitimacy.

The question then is, what should Trump do about it? I think that he would be legally and constitutionally justified in refusing to cooperate. He could ignore Merchan’s partisan orders and decline to have anything to do with the proceeding. He could get back on the campaign trail, where he belongs. On this scenario, Trump presumably would be convicted in absentia, which would mean that he couldn’t enter New York State for a while. But he is going to be convicted anyway, in all probability, despite the fact that, legally speaking, the prosecution is a joke. He can appeal, but appeals won’t be concluded before the election.

If Trump stops collaborating with the Bragg charade, Democrats will naturally say that the president (or ex-president) is not above the law. But what we are dealing with here is not the law. Alvin Bragg and Juan Merchan have cooperated to subvert the law. The Manhattan proceeding has no more legal or moral legitimacy than Stalin’s show trials of the 1930s. The difference is that Trump isn’t being tortured in Lubyanka Prison, so he doesn’t have to cooperate.

So what should Trump do? I suppose the answer is ultimately political, just like the prosecution. I think Trump might do better by repudiating the fake legal proceeding than by collaborating with it and being convicted, but then, I am no political consultant (happily).

But whatever Trump decides to do, on this and other absurd Democratic Party prosecutions, he deserves our support. In its desperation to retain its grip on power, the Democratic Party has turned the United States into a banana republic. Never in our political history has there been anything as disgraceful as the lawfare the Democrats have launched against Trump. For their misconduct, they deserve to pay a steep political price.