A Judge Explores Questions of Partisanship and Impartiality Following Trump’s Trial
By Carl J. Schuman, Senior Judge, Connecticut Superior Court
A Close Look at President Trump’s Trial Raises Concerns
Trials and appeals involving political candidates or elections are very difficult undertakings. Judges and juries must resist the strong temptation to let their political preferences play a role in their decisions. For example, in November 2014, I presided over a dispute involving irregularities at the polls in the statewide race for governor. It was a difficult case for me because I had voted for one of the candidates.
So, it is no surprise that accusations of partisanship emerged in the criminal trial of former President Donald Trump. The charges stem from Trump, or one of his associates, making false business entries for “legal services” in the Trump organization’s books; false entries that were, in fact, reimbursements to his then-Attorney Michael Cohen for “hush money” given to porn star Stormy Daniels. The hush money was intended to prevent Daniels from publicly disclosing, near the time of the 2016 Presidential election, an affair that Trump had with Daniels in 2006.
Let’s examine some of the issues concerning the fairness of President Trump’s trial. I am not expressing an opinion as to whether the jury reached the correct decision based on the facts. Our Constitution gives the jury authority to render verdicts in most criminal cases and it does so for good reasons. Unlike almost any other group of persons, the jury, in theory, is a neutral fact-finder that hears and deliberates reliable evidence that is given under oath and tested by cross-examination.
Concerns about the Location and Judge for President Trump’s Trial
There are, however, some legitimate concerns about the fairness of Trump’s trial. Imagine this scenario: A maverick prosecutor in Wyoming decides to bring charges against President Trump concerning a business transaction he made in the state. Wyoming has the highest percentage of Republican voters—and thus jurors—in the country. Imagine also that the presiding judge in the case had made a small contribution to “Re-elect Donald Trump, MAGA Forever!” Do you think the prosecution would get a fair trial?
That situation is not all that different from what happened in New York, except in reverse. Registered Democrats in Manhattan outnumber registered Republicans by a ratio of 8-to-1. It is true that the indictment alleges that the crimes of making false business entries occurred in Manhattan (and elsewhere), and trials are supposed to take place in the location where the crime occurred. So, it was presumptively proper to hold the trial in New York City.
However, if you have strong feelings about President Trump—and many people do—ask yourself this question: if you were a juror, would your verdict be influenced by your feelings about President Trump or by facts you already know about him? Getting a purely neutral jury can be difficult when so many people would likely vote against the defendant in an election or know unfavorable facts about him.
Further, Judge Juan Merchan, the trial judge, made two small contributions totaling $35 to pro-Biden, anti-Trump political organizations, even though New York state ethics rules prohibit judges from “partisan political activity” and from “making a contribution to a political organization or candidate” except to his own campaign. In addition, Judge Merchan’s daughter served as president of a political consulting firm that has done business with anti-Trump organizations. Nonetheless, the New York Appellate Division court upheld Judge Merchan’s decision not to recuse himself from the case.
If you are concerned with the appearance of impropriety because the wives of Supreme Court Justices Samuel Alito and Clarence Thomas were involved in pro-Trump displays or activities, as you should be, then you should be concerned with Judge Merchan presiding over President Trump’s trial.
An Eager District Attorney
The indictment charges that the false business entries occurred in 2017, while a federal criminal investigation ended in 2019 and an initial state criminal investigation ended in 2022, both without bringing charges. Meanwhile, Alvin Bragg ran successfully for District Attorney in Manhattan bragging (so to speak) that he had sued Trump over 100 times. Bragg’s office knew that the two-year statute of limitations on misdemeanor charges of falsifying business entries had run out. So, Bragg obtained an indictment in March 2023 on felony charges of falsifying business records, which the statute of limitations did not bar.
These charges were very unusual. Under New York law, the charge of falsifying business records can only be elevated from a misdemeanor to a felony if the defendant falsified the records in an attempt to commit or conceal a second crime. A New York Times analysis of about 30 false business records cases brought by Mr. Bragg and his predecessor showed that, in all but two of the indictments, the defendant was charged with an additional crime on top of the false records charge. In President Trump’s trial, there was no additional charge.
The charging of an additional crime gives the defendant notice of what crime the prosecution believed he was concealing by making false entries. Notice of the charges that a defendant is facing is a bedrock principle under the U.S. Constitution. Instead, the indictment simply charges that the defendant made false entries in the business records “with intent to defraud and intent to commit another crime” without specifying the other crime. In later filings, however, Bragg did list four types of crimes that Trump allegedly intended to conceal: a violation of federal campaign finance limits, a violation of state election laws by unlawfully influencing the 2016 election, a violation of state tax laws regarding the reimbursement, and the misdemeanor offense of falsification of other business entries, such as Michael Cohen’s bank records.
A Unique Approach with Multiple Layers of Charges
The state added these offenses to the basic false entry charges using a complicated, two-step formula. First, the state alleged that Mr. Trump falsified records to conceal a violation of the New York Election Law that forbids conspiracies “to promote or prevent” a person’s election “by unlawful means.” These “unlawful means” included the other three violations of federal election, state tax, and state false entry laws.
It is not uncommon to see two charges piggy-backed: burglary involves an illegal entry for the purpose of committing another crime. Conspiracy involves an agreement to commit another crime. But in my twenty-six years on the bench, I have never seen three layers of charges piggy-backed. New York’s approach to charging President Trump in this case arguably stretches the law quite thinly to specially design charges that fit the wrongdoing.
Furthermore, the jury did not have to be unanimous as to which offense Trump ultimately intended to conceal. Judge Merchan instructed the jurors that, while they would have to “conclude unanimously” that Mr. Trump had violated the Election Law to find Mr. Trump guilty, they did not have to be unanimous about which of the three “unlawful means” were used. While the judge’s instruction is consistent with New York case law on the topic, it nonetheless begs the question: what felony was Trump actually convicted of?
In addition, New York case law did not allow the judge to give the jurors a written copy of his 55-page jury instructions. If you think that understanding what I have just written about the charges is difficult, try understanding it when someone reads it to you. It is like having someone read you detailed instructions, without stopping, on how to assemble a piece of Ikea furniture. In Connecticut, for example, during our charge to the jury, we generally give the jurors a copy of the instructions or project them on a screen in the courtroom so they can follow along while we are reading them, and we always give them a written copy of the instructions to use during the deliberations. Depriving the jury of a written copy of the instructions increases the risk of an erroneous jury verdict.
Was President Trump Treated Differently in Court than Other Defendants?
Both supporters and opponents of President Trump argue that he was treated differently than other defendants appearing before the court. They may both be correct. On the one hand, the prosecution employed an essentially unique theory to avoid the statute of limitations and bring felony charges against the former president six years after the incident and after two previous investigations had not led to charges. It seems unlikely that the District Attorney would stretch the law and tailor-make similar charges for a person with a lower profile.
On the other hand, Judge Merchan found President Trump in violation of his gag order ten times and did not send him to jail. The gag order prohibited the former president from commenting publicly about court staff (except the judge and district attorney), their families, witnesses, and jurors. The judge faced a difficult choice under state law between incarceration and imposing the maximum $1,000 fine for each violation. Judge Merchan wisely stated that he did not wish to jail Trump because he was a former president and potentially the next president. But he surely knew that a $1,000 fine would not likely deter a wealthy defendant like Trump from committing additional violations. In this instance, Trump got a break because of his presidential status.
The Appeal Process Can Take Years
The issues we have discussed are unusual, but all are within the realm of appellate courts. If President Trump did not get a fair trial, the appellate courts can and will say so. Trump has a right to appeal to the New York State Supreme Court, Appellate Division. If Trump loses, he can petition for leave to appeal to the New York Court of Appeals, which is New York’s highest court, and even to the United States Supreme Court. These courts, while admittedly composed of judges who also have political preferences, will take a second look at the trial with the luxury of more time, more research, and somewhat less public attention.
But the Trump defense team cannot file the appeal until after the court imposes the sentence, scheduled on July 11, 2024. Complete exhaustion of the appeal process can take years, but in the meantime, the law presumes the judgment of the trial court to be correct. The consequence is that Trump will technically retain the status of “convicted felon” unless an appellate court reverses the trial court’s judgment. The irony is that while Trump will benefit from delays in the trials of the other three criminal cases against him, in the New York case the inevitable delay in the appellate process actually works against his interests.
The Judicial System is Reliable, but Imperfect
Trials involving public officials, especially elected officials, are particularly difficult because of familiarity with the defendant by the court and potential jurors. In my view, the prosecution and the court should take the highest road possible in these cases to ensure that the result will withstand the inevitable public scrutiny and promote public confidence in our judicial system. Ideally, one would want a high-profile trial to be beyond reproach.
While I expressed concerns as to whether Donald Trump received a fair trial in New York City, I also must say that our jury and judicial system, while imperfect, is inherently a more organized and reliable forum for determining the truth than the political arena, media, or internet. The rules of evidence bar partisan speeches, unqualified expert opinions, and conspiracy theories from consideration by the jury. So the jury’s verdict in President Trump’s trial is not meaningless. And, if there were significant mistakes in the conduct of the trial, our appellate courts are fully capable of rectifying any injustice. There is no cause for extrajudicial remedies or retribution.
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Carl J. Schuman
Carl J. Schuman is a senior judge on the Connecticut Superior Court. Judge Schuman is a former Assistant United States Attorney and the editor of books on criminal procedure and state constitutional law. He is also on the adjunct faculty at the University of Connecticut School of Law and Quinnipiac University School of Law. He is a regular contributor to Divided We Fall. His views do not necessarily reflect the views of the Connecticut Judicial Branch.