Donald Trump Chooses To Antagonize Yet Another Judge

Donald Trump is at it again.

A few months ago, Letitia James was trying a business fraud case against him.

Trump decided that it would be a good idea to antagonize the judge during that trial. Trump thus used social media to attack both the judge and his law clerk. At the time, I wrote that this was stupid. It was. When the judge issued his decision in the James case, we saw who wins — by about 350 million bucks — when a litigant picks a fight with a presiding judge.

Trump is about to start another trial, this time in a criminal case brought by Manhattan District Attorney Alvin Bragg.  Judge Juan Merchan will be presiding over that case. And, in the words of Ronald Reagan during the 1980 presidential debate: “There you go again.” Trump is once again using social media to attack the judge and, this time, the judge’s daughter.

I’m sure that, this time, attacking the presiding judge will work like a charm.

Here’s the backstory:  Trump paid hush money to Stormy Daniels on the eve of the 2016 presidential election to prevent her from revealing her one-night stand with him. Trump then altered the books of The Trump Organization to conceal the payment. So far as I can tell, Bragg has Trump dead to rights on these claims:  Michael Cohen may not be a very credible witness, but every aspect of the story will be backed up by the written records of The Trump Organization.

You read it here first: Trump will be convicted of the business records offenses.

The alteration of business records is, however, only a misdemeanor. To convert that misdemeanor into a felony, the prosecutor must show that the business records were altered with the intent to conceal another crime. In the Trump case, Bragg alleges that Trump altered the business records to conceal payments that violated federal campaign and election law.

This is the part of the case that’s tricky. Although a New York prosecutor can use intent to conceal another New York crime to change a misdemeanor business records violation into a felony, it’s not clear that a New York prosecutor can use intent to conceal a federal election law crime for this purpose. That’s why pundits say that Bragg’s prosecution of Trump is a tough one.

For purposes of this column, here’s what matters:  It will be entirely up to Merchan to decide whether the jury should consider if Trump committed any felonies. The question of whether a prosecutor can use federal election law to turn New York state misdemeanors into felonies is purely a matter of law. If Merchan (alone) decides that Bragg can rely on federal law in the New York prosecution, the judge will ask the jury to decide whether Trump altered business records to conceal a federal crime. If Merchan (alone) decides that Bragg cannot rely on federal law for this purpose, then the judge will not ask the jury to decide this issue, and Trump cannot be convicted of a felony.

It is thus very, very important to Trump that he remain in Merchan’s good graces during trial. In part, Trump’s fate is in the judge’s hands (alone).

So what does Trump do to stay in the judge’s good graces?

He attacks the judge and his daughter on social media.

When Merchan is thinking about the tough, and legally close, issue that he must decide, he’ll be aware that Trump attacked the judge personally, and the judge’s daughter, in public. Judges are able to control their tempers, of course, and there’s no reason to think that Merchan will be vindictive.

But if you were the judge, and it cost you nothing to punish the jerk who attacked you and your family on social media, how would you rule? Would you let the jury decide whether to convict Trump of a felony, or would you throw out the felony counts?

I’m just askin’.

On appeal, Trump will probably assert that Merchan was biased against him. The prosecutors will explain that Merchan exhibited no bias, and he called balls and strikes precisely as he saw them. If the law were not so rigid, the law might recognize that Merchan had every right to be biased against Trump; Trump had, after all, attacked the judge and his family.

Trump asked for it.

We’ll see how Trump’s tactics work out for him during this trial.

But judging by past experience, attacking a judge while your case is under submission is not a good idea.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].