President Trump’s actual offense at his New York trial was not a misdemeanor accounting violation magically transformed into 34 felonies. His crime was winning a presidential election and threatening to win another. New York Democrats prosecuted Trump solely to create a political advantage for their unpopular candidate by convicting and threatening to imprison his Republican opponent. It’s really that simple.
But employing our legal system as a tool of progressive politics comes at a great cost. It puts the integrity of that system — and our republic — at risk.
Recognizing the inevitable impact political and cultural compassion can have on judicial proceedings, our legal system provides certain protections to assure its integrity. They include requiring that our laws be clear, our judges unbiased, and our prosecutors act as ministers of justice enforcing the law fairly rather than using it as a political cudgel.
Trump was denied these protections at every stage of his prosecution.
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First the law. Because every citizen is responsible for knowing the law, laws must be knowable. The accused must understand what they are accused of, so that they can adequately defend against it. In fact, the Sixth Amendment provides the accused with a constitutional right “to be informed of the nature and cause of the accusation.”
Trump was denied this most basic due process protection.
According to CNN’s chief legal analyst Elie Honig, District Attorney Alan Bragg inflated misdemeanors past the statute of limitations and “electroshocked them back to life within the longer felony statute of limitations” by alleging “that the falsification of business records was committed ‘with intent to commit another crime.’”
Bragg inexcusably “refused to specify what those unlawful means actually were — and the judge declined to force [Bragg] to pony up — until right before closing arguments. So much for the constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial.”
ABC’s chief legal analyst, Dan Abrams, agreed, asking “why didn’t the defense even know what the charge was that they were gonna be applying, what law they were going to be applying… There were a lot of questions for the defense going into this, I think, as they were making their closing arguments not even knowing what the law they were going to be battling over was.”
As accurately summed up by CNN’s Honig, the charges against Trump were “obscure, and nearly entirely unprecedented. In fact, no state prosecutor — in New York, or Wyoming, or anywhere — has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything. None. Ever.” Those charges were “seemingly crafted individually for the former president and nobody else.”
That certainly sounds political.
Of course, an unbiased judge could have addressed those issues. So, how about Judge Merchan, who presided over the trial? Under New York’s Rules of Judicial Conduct, a judge is required to “avoid” even “the appearance of impropriety in all of the judge’s activities” and to “perform the duties of judicial office impartially and diligently.” In fact, a judge must — the Rule says “shall” — “disqualify himself… in a proceeding in which the judge’s impartiality might reasonably be questioned.”
Was this a case calling for disqualification under those standards?
Well, to avoid that appearance of impropriety, the Judicial Code also specifically prohibits judges “making a contribution to a political organization or candidate.” But, according to CNN, Judge Merchan contributed to the Biden campaign, the “Progressive Turnout Project” and an organization called “Stop Republicans.”
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Yes, it is actually called “Stop Republicans.” According to its website, the group is “dedicated to resisting the Republican Party and Donald Trump’s radical right-wing legacy.”
He contributed $35, which is a small amount and would likely avoid deeper scrutiny in any other case (which may explain why it was so small). But keep in mind that, for good reason, the Judicial Code prohibits “making a contribution” regardless of size.
People do not make contributions of this size because they believe it will impact an election. They do so to show they’re on the team — in this case, Team Biden. The point of making such a contribution is to show partiality — that is, support for the candidate to whom — or the cause to which — you contribute. Why else contribute?
So, might Judge Merchan’s “impartiality… reasonably be questioned”? Well, the defendant was the presumptive Republican presidential nominee. The judge not only supported his Democrat opponent, but also a group committed to stopping the Republican Party in general — and a guilty verdict could do just that.
Seriously, this does not seem like a close call.
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How about D.A. Bragg, who, under New York’s Rules of Professional Conduct, has the “responsibility of a minister of justice and not simply that of an advocate.”? Well, to get elected in ultra–Progressive New York City, Bragg boasted that he was on the team that “sued Trump over 100 times,” and was “the candidate in the race who has the experience with Donald Trump.”
He also acknowledged the political importance of going after the former president, stating that “it’d be hard to argue with the fact that that’d be the most important, most high-profile case.”
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Obviously, he won the election and then initiated that “most high-profile case.” Known for releasing people accused of actual crimes, he went after President Trump with unparalleled gusto.
The importance of these protections against injustice was particularly acute in Trump’s case, since the trial took place in Manhattan, a borough of New York City whose residents voted 87% for Biden in 2020, the highest percentage of any major metropolitan area in the nation. Denying him this due process protection was equivalent to a directed verdict of guilty.
You would have to be exceedingly naive to believe this case was decided on an unbiased application of the law to the facts rather than patent political bias. It was always a political exercise designed to provide Democrats with an issue sufficient to overcome President Biden’s unpopular policies and declining mental acuity. George Soros’s son Alex recently made that crystal-clear, stating — “Democrats should refer to Trump as a convicted felon at every opportunity.” Undoubtedly, they will.
Democrats talk incessantly about preserving democracy as they make every effort to subvert it when a political tactic plays in their favor. President Trump’s lawfare trial is a prime example. If this tactic succeeds, lawfare will become standard operating procedure for both parties — and a disaster for our nation. Surely, even the most ardent Trump haters are aware that you cannot preserve democracy by abandoning it.
Trump’s conviction will very likely be reversed on appeal, but after the upcoming election. Nonetheless, we can yet put an end to this anti-democratic power grab. Our Republic has one final line of defense — political accountability.
That judgment will come this November.
Andy Puzder was chief executive officer of CKE Restaurants for more than 16 years, following a career as an attorney. He is currently a Distinguished Visiting Fellow at the Heritage Foundation, and a Senior Fellow at both the Pepperdine University School of Public Policy and the America First Policy Institute. His next book, “A Tyranny for the Good of its Victims – The Ugly Truth About Stakeholder Capitalism” will come out early next year. The views expressed here are his own and do not reflect an institutional position for The Heritage Foundation or its board of trustees.