As Donald Trump’s criminal trial wrapped up in New York last May, one of his lawyers wanted to give the jury unusual instructions that would have made it harder to convict him. A special case warranted special rules, the lawyer argued, and the first prosecution of a former US president was “obviously an extraordinarily important case.”
The judge, Juan M Merchan, was unmoved. “What you’re asking me to do is change the law, and I’m not going to do that,” he said.
Merchan has made a steadfast effort to approach the landmark case no differently than hundreds of others he has overseen. But more than three months after a jury of New Yorkers convicted Trump on 34 felony counts of falsifying records to cover up a sex scandal, the veteran judge faces his greatest predicament: He must decide whether to sentence Trump as planned on September 18th or wait until after election day, as Trump has requested.
Merchan has already agreed to delay the sentencing once, and his upcoming decision – which will be made in the heat of a presidential campaign that has pitted Trump against vice president Kamala Harris – will reverberate well beyond his Manhattan courtroom.
The decision could influence not only the election, but American politics for years to come. And it will almost certainly subject Merchan to partisan second-guessing at a time when the nation’s faith in the judiciary has been shaken by the supreme court’s decisions on abortion, guns and other issues, as well as revelations about some of its justices’ own political entanglements.
“The judge is in an impossible situation, and one that doesn’t lend itself to easy comparisons,” said Charles Geyh, a law professor at Indiana University Bloomington who specialises in judicial conduct and ethics, adding that Merchan’s decision would carry “historical implications”.
While Trump has already been deemed a felon, if Merchan postpones his sentencing until after the November 5th election, the American people will vote without knowing whether Trump will spend time behind bars.
A delay would also reward the stalling tactics Trump has deployed throughout the case, and feed the very impression the judge has laboured to dispel – that the former president is above the law.
Yet if Merchan, a moderate Democrat who was once a registered Republican, imposes a sentence just seven weeks before election day, Trump will no doubt accuse him of trying to tip the campaign in favour of Harris.
Some of Merchan’s colleagues, while acknowledging his quandary, predicted he would tune out the political noise and issue a reasoned decision. They noted that the judge had maintained his usual drama-averse demeanour while presiding over the trial, even as Trump attacked him and his family, falsely claiming they were members of a Democratic cabal.
“Whatever decision Judge Merchan makes will not only be the right decision, it will be driven by nothing other than that which occurred in the context of this case,” said Jill Konviser, a retired judge who has known Merchan for more than 15 years.
“Donald Trump will be treated fairly,” she added. “Of that, I am 100 per cent sure.”
Geyh was similarly impressed by Merchan’s composure during the trial and anticipated a measured approach to the sentencing.
“Within some quarters of the judiciary, there is the possibility of a judge running screaming from the room, and sort of seeking the least difficult way out,” he said. “But I don’t think that this guy is showing signs of that.”
After finalising Trump’s sentencing date, Merchan faces still more delicate decisions. He has promised to rule this month on Trump’s request to throw out his conviction in light of a new supreme court ruling granting presidents some immunity from prosecution. And, at some point, he will have to actually decide whether to put the Republican candidate behind bars.
Trump, the first president to become a felon, faces up to four years in prison. But legal experts believe it is more likely that Merchan will sentence him to a few months in jail or probation.
Whatever his punishment, Trump is unlikely to be incarcerated before the election. Even if the judge hands down the sentence on September 18th, he could postpone any punishment until after election day, or, if Trump wins back the White House, until after his second term expires.
Nor is Merchan likely to have the final say. The former president will appeal his conviction to higher courts, and if Merchan sticks with the plan to sentence him on September 18th, Trump will likely appeal that decision as well.
Trump’s effort to delay his sentencing has coincided with his political struggles. Harris’s entry into the presidential race this summer upended the campaign and erased his lead in many polls, both nationwide and in critical swing states.
Initially, Merchan was set to sentence Trump in mid-July. But on July 1st, the supreme court granted Trump broad immunity from prosecution for official acts as president. Trump’s lawyers promptly petitioned Merchan to delay the sentencing so that he could consider overturning the conviction in light of the supreme court ruling.
The Manhattan district attorney, Alvin Bragg, consented to a delay, but argued that the court’s decision had “no bearing” on the case.
The New York jury convicted Trump in May of falsifying business records to conceal his involvement in a hush-money payment to adult film actor Stormy Daniels, who threatened before the 2016 election to disclose her story of sex with Trump.
Prosecutors argued that it was a personal and political scandal unrelated to Trump’s White House duties, and therefore it was not affected by the supreme court ruling.
Still, Merchan agreed to rule on the immunity issue in early September and sentence Trump after that. Unsatisfied, Trump sought to oust the judge from the case for a third time, claiming that Merchan’s daughter had ties to Harris.
The judge declined to step aside, and slammed Trump’s “innuendo and mischaracterisations,” but the former president successfully orchestrated another delay. The judge pushed back the immunity ruling until September 16th, two days before the planned sentencing.
Trump’s lawyers then sought to use that tight timeline to their advantage, arguing that they would not have enough time to mount an appeal if Merchan rejected the immunity bid.
Bragg, a Democrat, skirted the partisan crossfire and declined to endorse or oppose the former president’s request, saying that while the schedule posed challenges, the sentencing should happen “without unreasonable delay.”
Bragg’s prosecutors separately noted that the scheduling problems Trump lamented had arisen from his own “strategic and dilatory litigation tactics”.
Late last week, Trump concocted yet another delay strategy, this time seeking to move the case to federal court, again citing the supreme court’s immunity ruling.
But on Tuesday, a federal judge denied Trump’s claims of immunity, noting that “hush-money payments were private, unofficial acts, outside the bounds of executive authority.”
While Trump intends to appeal, the ruling keeps the case in Merchan’s courtroom for now.
Stephen Gillers, a professor of law at New York University who is an expert in legal ethics, said Merchan must offer clarity about the reasoning behind any decision.
“A fair-minded member of the public has to be able to go away feeling that this is an appropriate sentence,” Gillers said. “And the way you do that is with detail.”
In more than a year of overseeing the case, Merchan has resisted many of Trump’s most audacious manoeuvres, while emphasising the need to be fair.
In March, he delayed the trial for three weeks to allow Trump’s lawyers to review additional evidence, but refused to postpone it for a longer period of several months, as they had requested. Although he allowed much of the prosecution’s case to proceed, he stripped out some of what he deemed as more tenuous evidence.
And while he imposed a gag order on Trump that barred him from assailing witnesses, prosecutors and the judge’s own family, he resisted calls to jail Trump for repeatedly violating the order.
“Mr Trump, it’s important to understand that the last thing I want to do is to put you in jail,” he said in court in early May. “You are the former president of the United States, and possibly the next president, as well.”
Martin Horn, a professor emeritus at John Jay College of Criminal Justice and executive director of the New York State Sentencing Commission, predicted that, despite Trump’s protestations to the contrary, Merchan would again endeavour to treat the former president as he would any other defendant.
“A potentially troublesome defendant, an argumentative defendant,” Horn said. “But just a defendant.”
- This article originally appeared in The New York Times.
