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Trump Gets Pass After Pass After Pass From Normal Rules Of Law

Phil Garber


If a normal court defendant badmouths a judge he may find himself a temporary involuntary resident at the infamous Rikers Island prison, the largest jail in New York City and one of the worst in the nation.

The same doom awaits those who cannot afford to make bail. That was the fate of Kalief Browder, an African American youth from the Bronx who was held for three years at Rikers Island after he could not make bail on a charge of stealing a backpack containing valuables. Browder was kept in solitary confinement for most of the time. Two years after his release, Browder hanged himself at his parents’ home.

Unlike trump, the defendant who can’t afford to pay bail often is held in jails like Rikers Island until the trial. Bail bondsmen don’t bother with posting bail for relatively minor offenses involving poor defendants. Trump can pay any amount of bail; it is not an issue. Trump can rest assured that he will be no Kalief Browder.

Trump has been fined $9,000 for violating a gag order set by Judge Juan Merchan in trump’s trial involving hush money payments by Stormy Daniels. After the 10th violation, trump has refrained from attacking witnesses and the jury. Merchan isn’t taking any guff from trump and warned him that if he violates the gag order an 11th time, “Going forward, this court will have to consider a jail sanction.”

In the mildest of tongue lashings, Merchan told trump “it’s important you understand, the last thing I want to do is put you in jail. You are the former president of the United States and possibly the next president as well. The magnitude of this decision is not lost on me but at the end of the day I have a job to do.”

To make it perfectly clear that Mechan was bending so far over backwards for fairness, he told trump, “So as much as I don’t want to impose a jail sanction … I want you to understand that I will if necessary and appropriate.”

Merchan fined Trump $1,000 for the violation and ordered he pay the fine by close of business Friday. Last week, the judge fined Trump $9,000 for nine previous violations of the judge’s gag order. In other words, Merchan has warned trump, fool me once, shame on me, fool me 11 times, shame on you.

The trump disinformation train is going full ahead in efforts to smear the judge and the prosecutor in the court of public opinion, including to impact lawmakers whose support would be crucial if trump is reelected.

Trump complained on his Truth Social media platform that the gag order limits him from criticizing witnesses, jurors and court staff, claiming that it is part of a “sophisticated hit job” orchestrated by President Biden and that “all of the sleazebags, lowlifes, and grifters” are allowed to say absolutely anything that they want. Trump is no different than those “sleazebags, lowlifes, and grifters” as contrary to his complaints, his free speech has not been blocked, just words that might put others in danger of their lives.

The gag order does not violate trump’s constitutional right of free speech but it does bar him from insulting witnesses, jurors, prosecutors, court staff and the judge’s family. It doesn’t stop him from attacking Judge Merchan or Manhattan District Attorney Alvin Bragg (D), both of whom are daily victims of trump.

There is no evidence the Biden White House has had any involvement in Trump’s legal cases.

Trump also has bloviated to reporters that he would be willing to go to jail for violating the gag order.

“This judge has given me a gag order and said you’ll go to jail if you violate it,” he told reporters. “And frankly, you know what, our Constitution is much more important than jail. It’s not even close. I’ll do that sacrifice any day.”

Trump made similar comments when he told the crowd prior to the Jan. 6, 2021, insurrection at the Capitol that he would lead the march, just like Rev. Martin Luther King Jr. Actually, trump quickly disappeared to safety when the rabble of supporters began marching to the Capitol.

Trump also has claimed that the gag order means he cannot testify during the trial. Wrong. He could testify but he has apparently acceded to his lawyers’ advice that testifying would subject him to cross examination by the government and it would be like putting a metaphorical noose around his neck, not a good idea.

If Judge Merchan follows through on his threats of jail, trump may have to suffer the unbearable, discomforting, embarrassing indignity of being sequestered for a whole night at a fancy hotel with room service and Netflix while Secret Service officers stay in adjacent hotel rooms, with the thousands of dollars in charges, all on the public dime.

One thing is for sure; Judge Merchan will not follow the example of Julius Hoffman, the federal judge in the 1970 trial of the so-called “Chicago Eight,” protesters arrested during the 1968 Democratic Convention. During the trial, Hoffman refused to allow the defendant Bobby Seale to represent himself after Seale’s original attorney became ill. This prompted conflicts with Seale that led to Hoffman ordering Seale to be gagged and shackled in the courtroom and eventually jailed for contempt. Just like the sun will rise tomorrow, trump will never be gagged and shackled, no matter how much he deserves it.

Trump has an army of the best lawyers money can buy. And then there are the rest of us who can’t afford one legal mouthpiece, never mind a phalanx of attorneys.

In 1963, the Supreme Court handed down Gideon v. Wainwright, which held that the government had to provide a lawyer to any poor defendant facing prison time. The definition of “poor” is relative and differs from state to state but those who are deemed “poor” need not worry, because the system will provide a poorly qualified, minimally experienced public defender at no charge.

The trump legal legions have been increasingly successful in winning invaluable delays. That is the strategy, not disproving the charges, because trump knows that if he can delay trials beyond the November election and if he wins re-election, he can deposit all those annoying prosecutions in the dust bin.

Charges lodged against trump and others in Georgia for allegedly attempting to overturn the state’s 2020 presidential election would disappear. Charges that trump stole and hid top secret documents would vanish with the wave of a presidential pen. Charges that trump incited the Jan. 6, 2021, riot by his supporters at the Capitol would also go poof.

Trump’s lawyers will continue throwing out absurd objections, hoping something will stick, like claims that the former president is immune from criminal prosecutions for actions during his time in office, even to the extent that he could order an assassination without legal reverberations.

The foundation of the court system is justice delayed is justice denied, except for trump.

Another bedrock for American justice is an unbiased, objective judge and jury. Except for trump. U.S. District Court Judge Aileen Cannon has indefinitely delayed the start of trump’s federal trial in Florida for mishandling classified documents. The trial was supposed to start on May 20 but Cannon issued a five-page order that many pretrial issues remain unresolved. That is because she has delayed resolving many pre-trial issues.

Cannon was appointed to the bench by trump in 2020 and Democrats have accused the inexperienced and likely biased juror of “deliberately slow-walking” the case to push it off beyond November.

Cannon, 43, graduated from the University of Michigan Law School in 2007 and worked for a corporate law firm before becoming an assistant federal prosecutor in Florida. She had limited trial experience and just met the American Bar Association’s requirement of 12 years of legal practice when trump appointed her in 2020.

The New York Times reported on May 6 that in her latest ruling, Cannon issued a “bare-bones order that contained no factual or legal reasoning.”

The Times noted that Cannon’s postponement of the filing deadline “was merely the latest example of her acceding to Trump’s attempts to delay the classified documents trial. That Judge Cannon agreed to push back the deadline suggests the extent to which she has given Mr. Trump’s legal team a wide berth in their efforts to defend him.”

“Over and over, Judge Cannon, who was appointed by Mr. Trump, has treated seriously arguments that many, if not most, federal judges would have rejected out of hand. Often, her acceptance of Mr. Trump’s unorthodox claims have resulted in significant delays in bringing the charges in the classified documents case in front of a jury,” the Times reported.

Cannon’s bias smells a lot like the controversy surrounding Supreme Court Justice Clarence Thomas, who has refused to recuse himself from cases related to wealthy Republicans who have given Thomas tens of thousands of dollars' worth of favors. Thomas also has chosen not to step down in trump-related cases even though his wife has been closely involved in trump’s efforts to overturn the 2020 election. Conflicts of interest are non-sequiturs when it comes to federal judges and the country’s highest court.

For those naïve enough to believe that judges are as clean as the driven snow, there is the 2016 cautionary tale of a lower court judge who should have never heard a case involving a man he once helped condemn to death.

The high court ruled in Williams v. Pennsylvania that Ronald Castille, the former chief justice of the state of Pennsylvania, was biased and wrongly heard a death penalty case because the judge was formerly a prosecutor who pressed for the execution of the 56-year-old murder suspect.

Justice Thomas wrote a dissent complaining that the majority opinion departs from “settled usages and modes of proceeding existing in the common and statute law of England before the emigration of our ancestors.” Whatever that means.

South Dakota Republican Gov. Doug Burgum was dead on in his observations about trump’s hush money trial.

“If it was anybody else, this trial wouldn’t even be happening,” said Burgum, who is auditioning for the vice presidency if trump wins in November. “It is a travesty of justice.”

Burgum was parroting virtually every Republican lawmaker under trump’s thumb who claim the case is a political witch hunt. Burgum was right about the trial but not in the way he meant.

If this was virtually any other defendant, the trial would be old news and ancient history, and the defendant would likely already be in jail. If this was any other defendant, the case would have already been settled with a plea bargain between the accused and the government.

But this is trump and it is becoming more and more likely that the only trial that will be held before the November election will involve the illicit affair with the adult film star and a hush money scheme designed to keep the scandal out of the news prior to the 2016 election.

In just a year, trump has been indicted in four criminal cases, lost a series of civil lawsuits and has been ordered to pay hundreds of millions in damages. But the criminal cases are the most potentially damaging, both in their impact on voters and on trump himself, who could find himself behind bars.

The most serious charges were lodged by a special prosecutor involving trump’s efforts to overturn the 2020 election and the violent riot at the Capitol by trump supporters on Jan. 6, 2021.

The criminal cases have not been resolved and the likelihood is that they will not be settled until after the November presidential election. The ultimate irony will come if trump is re-elected because he will then dismiss all federal indictments against him, although he could not dismiss the New York case because that involves state and not federal charges.

Trump’s lawyers lost a move to have the New York hush money trial relocated to federal court. But the request took time and the trial’s start was delayed. Trump’s trial was originally scheduled to begin in New York on March 25 but was delayed to April 15.

Trump has been federally charged in Florida with obstructing justice by refusing to turn over top secret documents. The case was originally expected to go to trial in May but trump has repeatedly submitted unsuccessful motions to indefinitely delay the trial, and there’s no start date in sight.

Trump has challenged his federal indictments on grounds that he has complete immunity from any crimes he may have committed while in office. The D.C. Court of Appeals turned trump down but the U.S. Supreme Court agreed to hear the case and continues to dither with a ruling expected by late June or early July. Either way the court rules, it will mean that lawyers won’t be ready for court until 2025.

In August, trump and 18 of his allies were indicted in a widespread racketeering case over their alleged efforts to meddle with the state’s election. Trump was charged with 41 total counts and prominent figures in the trump administration — including Rudy Giuliani, John Eastman, Mark Meadows, and Ken Chesebro — have also been charged.

In January, trump co-defendant Mike Roman accused the prosecutor, Fani Willis, of engaging in an improper romantic relationship with Nathan Wade, who was hired to assist in the prosecution of the case and paid more than $600,000 for his work. Roman requested that Willis be removed from the prosecution, and the case against him dismissed, on grounds that the affair presented a conflict of interest.

After a long investigation by the court into Willis and Wade’s affair, Georgia Superior Court Judge Scott McAfee ruled in March that the evidence against the pair was “legally insufficient to support a finding of an actual conflict of interest,” and that Willis could remain on the case so long as Wade stepped aside. The Georgia Court of Appeals has agreed to hear an appeal from trump and others challenging McAfee’s ruling.