How Judge Merchan Is Orchestrating Trump’s Conviction

The former president is not charged with a conspiracy to steal the 2016 election — but the jury might think he is.


April 29, 2024 6:30 AM - National Review

If former president Donald Trump seems even more cantankerous in his Manhattan courthouse press conferences than in those he has held at other Democratic lawfare venues, it is undoubtedly because of his unique insight into what is being done to him there. As a young mogul, Trump learned hardball litigation at the feet of Roy Cohn, a rogue master of the game. Cohn’s No. 1 rule was: “Don’t tell me what the law is. Tell me who the judge is.”

In the ongoing criminal trial, elected progressive Democratic DA Alvin Bragg doesn’t have much of a case. But he has the judge, and that is all he needs.

Judge Juan Merchan is orchestrating Trump’s conviction of a crime that is not actually charged in the indictment: conspiracy to violate FECA (the Federal Election Campaign Act — specifically, its spending limits). That should not be possible in the United States, where the Constitution’s Fifth Amendment mandates that an accused may only be tried for a felony offense if it has been outlined with specificity in an indictment, approved by a grand jury that has found probable cause for that offense.

Bragg, a county district attorney responsible for enforcing state law, has no authority to prosecute federal crimes, much less crimes under FECA — a corpus so abstruse that Congress created a specialized bureaucracy, the Federal Election Commission, to ensure its uniform application, vesting the FEC and the Justice Department with exclusive enforcement jurisdiction (as explained in my weekend column).

Yet, Judge Merchan has swallowed whole Bragg’s theory that he can enforce FECA. The judge not only ruled pre-trial that Bragg could prove the uncharged federal crime; he has abetted Bragg’s prosecutors in their framing of the case for the jury as a “criminal conspiracy,” notwithstanding that no conspiracy is actually charged in the indictment — under either federal or state law. And although the trial has been under way for just a week, Merchan has already made key rulings patently designed to convince the jury that Trump’s complicity in a conspiracy to violate FECA has already been established.

Smuggling FECA into the Case

As we’ve noted many times, the actual charge against Trump (multiplied into 34 felonies by Bragg) is falsification of business records with fraudulent intent. That is a substantive offense, not a conspiracy (i.e., to be guilty, you actually have to carry out the criminal act, not just agree to do it). Business-records falsification is normally a misdemeanor under New York law (§175.05) but it can be inflated into a felony — with a prison sentence of up to four years for each offense — if prosecutors can prove that the defendant’s fraudulent intent included the concealment of “another crime” (§175.10).

This business-records felony was defined by the New York legislature, codified in the New York penal code. New York prosecutors are empowered to enforce only New York law. Hence, when the felony statute refers to “another crime,” it is obviously referring to another New York crime — not a federal crime that a New York County district attorney is not authorized to prosecute.

Yet, in his major pre-trial ruling, Merchan endorsed Bragg’s theory that because §175.10 says “another crime” rather than “another New York crime,” there is no bar to Bragg’s endeavoring to prove that Trump was concealing a federal crime. (See Merchan’s pre-trial opinion, pp. 12–14.) By this loopy logic, Bragg similarly has jurisdiction to enforce, say, Chinese penal statutes, sharia’s hudud crimes, and perhaps even the criminal laws of Rome (after all, under the Bragg/Merchan rationale, the statute doesn’t say the “other crime” must still be in existence).

Bragg has picked up this ball and run with it — which is easy to do when the judge is blocking for you.

Framing the ‘Criminal Conspiracy’ for the Jury.

Even though substantive falsification of business records is the charge in the indictment, the very first thing prosecutors told the jury in their opening statement last Monday was, “This case is about a criminal conspiracy and a cover-up” (see transcript, p. 857).

The opening was delivered by Matthew Colangelo, the former top Biden Justice Department official who is helping lead Bragg’s prosecution. The point of a prosecutor’s opening is to outline the charges and the evidence. Here, the state is searing into the jury’s mind that this is a conspiracy case. Trump’s lawyers have tried to object to this distortion. Merchan doesn’t just overrule their objections; he scolds them for rearguing an issue he’s already decided — even as it becomes more obvious that the decision is fatal to the defense.

Cohen, Pecker, and the ‘Illegal’ Payments.

Bragg alleges that Trump’s partners in the conspiracy to steal the 2016 election by violating federal campaign-spending restrictions were Michael Cohen, his then-lawyer/fixer, and David Pecker, Trump’s old pal who then ran the National Enquirer’s parent company, American Media Inc. (AMI). During the 2016 campaign, for Trump’s benefit, Cohen caused Pecker and AMI to pay Playboy model Karen McDougal $150,000 to stay mum about an affair she says she had with Trump a decade earlier, and $30,000 to Trump Tower doorman Dino Sajudin to keep quiet about Trump’s supposedly fathering a child out of wedlock (an allegation the Enquirer determined was untrue upon further investigation). With Pecker subsequently unwilling to pay porn star Stormy Daniels, who claimed to have had a fling with Trump in 2006, Cohen paid $130,000 for her silence about two weeks before the 2016 election.

In legalese, these payments to McDougal, Sajudin, and Daniels were legal consideration for their entering into nondisclosure agreements. NDAs are common, lawful, and a staple of civil-law settlements. The U.S. attorney for the Southern District of New York (SDNY) would never have attempted to indict and try Cohen for campaign crimes. SDNY prosecutors gladly accepted his guilty pleas as an add-on: Cohen was already pleading guilty to over $4 million in tax-evasion and bank-fraud crimes — having nothing to do with Trump — on which the SDNY had him dead to rights.

Cohen was anxious to plead guilty to the campaign crimes because they were comparatively trivial and would make no difference to his sentence (which was driven by the tax-evasion and bank-fraud charges). He calculated that the campaign-offense pleas would make him a saleable witness against Trump — he was hoping the SDNY would sign him to a cooperation agreement and ask the judge not to sentence him to any jail time. (It didn’t work because the SDNY concluded that Cohen was an inveterate liar who could not be relied on as a witness. Cohen has since claimed he was lying under oath when he pled guilty to the tax- and bank-fraud charges. If he’s prosecuted for that, it would be his second perjury conviction.)

As for Pecker, he was never prosecuted at all by the feds. Nevertheless, after he left AMI, the company entered a “conciliation agreement” with the FEC in which it agreed to pay a $180,000 fine (an amount equal to the McDougal and Sajudin payments). This settlement was worthwhile for AMI because it cleared the way for AMI’s efforts to complete a sale of the Enquirer worth tens of millions of dollars.

Placing Cohen’s Guilty Plea before the Jury

Nonetheless, Bragg claims that the NDA payments were illegal because they were essentially campaign contributions that exceeded the federal dollar-amount limits. As I’ve detailed, Bragg was planning to use Cohen’s guilty plea to establish that Trump was complicit in crimes because of the NDA payments. This, as Bragg well knows, would itself be illegal: A guilty plea by A is not admissible to prove that B is guilty, even if A and B acted in concert. Finally though, as I related prior to trial, Merchan correctly barred Bragg from offering Cohen’s pleas as evidence against Trump.

Or did he?

When I learned of the reporting about Merchan’s ruling from the bench, I didn’t know there was some fine print. Turns out Merchan was not entirely excluding Cohen’s guilty plea from the trial. Rather, he simultaneously ruled that prosecutors could elicit testimony about Cohen’s guilty pleas on the rationale that they are relevant to his credibility as a witness.

This was done over the objection of Trump’s lawyers. They want Cohen’s guilty pleas out of the case, and they are on solid legal ground. Cohen is a prosecution witness; ergo, evidence of his criminal convictions, which are admissible solely to impeach his credibility, are supposed to be for the benefit of the defendant, not the state. In this case, Trump’s lawyers don’t need that benefit. They already have a boatload of impeachment evidence stemming from Cohen’s other felony convictions and uncharged acts of dishonesty. Trump’s lawyers have thus prudently contended that the probative value of Cohen’s federal campaign-finance convictions (as marginal additional evidence that he can’t be trusted) is vastly outweighed by the prejudicial effect: The jury could easily be confused into concluding that if Cohen pled guilty to campaign crimes he says he committed with Trump, then Trump must be guilty, too.

When the probative value of evidence is substantially outweighed by unfair prejudice — especially regarding evidence that is for the defense’s benefit and that the defense would prefer to exclude — it is incumbent on the trial judge to exclude it. To protect Trump’s due-process rights, Merchan had to keep Cohen’s guilty plea to campaign offenses out of the case. But he refused to do that. In a pre-trial in limine ruling, Merchan held that Cohen could be asked about “whether there was a criminal proceeding related to his actions with respect to the FECA violation” — and note, Merchan didn’t say “the alleged FECA violation”; to hear the judge tell it, the violation has been established.

Even though prosecutors are not supposed to use Cohen’s guilty pleas to argue that Trump is guilty of campaign crimes, that is exactly what they are doing — and Merchan is letting them do it. In the prosecution’s opening statement, for example, in the context of explaining to the jury that Cohen, Pecker, and Trump had committed a “conspiracy” of “election fraud. Pure and simple,” Colangelo elaborated:

Cohen will also testify in this trial that he ultimately pled guilty and went to jail for causing an unlawful corporate contribution in connection with the Karen McDougal payments and for making an excessive campaign contribution in connection with the Stormy Daniels payoff.

This is breathtakingly mendacious. Colangelo was not properly admonishing the jury that Cohen is a witness of dubious credibility. He was signaling to them that the NDA payments to McDougal and Daniels — for which he had just blamed Trump in an extensive narrative — were crimes for which Cohen “went to jail.” In reality, Cohen was sentenced to prison because of his lucrative fraud crimes, not the FECA charges. The SDNY never charged Trump, and it almost certainly wouldn’t have charged Cohen if he hadn’t agreed to plead guilty.

The Non-Prosecution and Conciliation Agreements of Pecker and AMI

Colangelo also told the jury that Pecker and Cohen had a written agreement that AMI would be reimbursed for the $150,000 it laid out for the McDougal NDA. Yet, the prosecutor added:

After the agreement was signed, but before any money changed hands, David Pecker consulted with AMI’s general counsel. And based on that conversation, Pecker got cold feet. He told Cohen that the deal was off, the deal to transfer the rights [to McDougal’s story] to Cohen’s shell company was off and AMI would instead eat the cost of paying off McDougal. 

If this weren’t so cynical it might be amusing. Merchan let prosecutors make this argument right after pre-trial instructions, in which he explained to the jury:

[A] witness is not permitted to give an opinion about matters for which a special expertise is necessary unless, of course, the witness purports to be an expert on the matter he or she is being questioned about. With some exceptions, what a witness may have been thinking when something has taken place is not relevant evidence.

This is true. Pecker is not an expert in federal campaign law — he shouldn’t be allowed to testify about it. And what he may have been thinking — or, even more of a stretch, what AMI’s general counsel may have been thinking — about whether it would have been legal for AMI to take reimbursement from Cohen and Trump is irrelevant. It is not admissible evidence of Trump’s state of mind, let alone Trump’s guilt on the uncharged conspiracy allegation. Nonetheless, Merchan let prosecutors intimate to the jury that a knowledgeable lawyer had told Pecker it would be illegal for AMI to be compensated by Cohen and Trump for the money paid to McDougal. The judge has to know that’s improper.

In calling Pecker as their first witness, prosecutors had him testify that federal law is violated by expenditures made for the purpose of influencing an election. In addition, Merchan allowed the state to introduce both (a) a non-prosecution agreement under which the SDNY agreed not to charge AMI for violating the corporate campaign-contribution limit in exchange for AMI’s admission that it paid McDougal after consulting with Trump and Cohen; and (b) a “conciliation” agreement in which AMI agreed to pay the FEC a fine of $180,000 (for the McDougal and Sajudin NDA payments).

Pecker had participated in negotiating the non-prosecution agreement. In admitting it into evidence, Judge Merchan told the jury that the evidence was permitted only to help the jury “in assessing David Pecker’s credibility” — sure! — and “to help provide some context for some of those surrounding events,” whatever that’s supposed to mean. Having by then permitted extensive testimony that the NDA payments must be illegal because Pecker testified (just as Cohen will testify) that he now believes they violated federal campaign law, Merchan tried to cover himself by paying lip service to Trump’s rights:

Neither the Non-Prosecution Agreement, nor the Conciliation Agreement is evidence of the Defendant’s guilt, and you may not consider them in determining whether the defendant is guilty of not guilty of the charged crimes.

This will not pass any serious appellate court’s straight-face test. Those agreements have virtually nothing to do with Pecker’s credibility. If that were the only reason for offering them into evidence, Bragg wouldn’t have done it. Prosecutors, abetted by the judge, put them before the jury to support their contention that the payments violated federal campaign law and that Trump, therefore, was in a criminal conspiracy.

Merchan Suppresses Trump’s Non-Prosecution and His Election-Law Expert

Of course, at least equally relevant as the Cohen and Pecker/AMI agreements with the Justice Department and FEC is the fact that the feds decided not to proceed against Trump after thoroughly investigating the matter. This was not because the DOJ and FEC approved of what Trump did; it was because a prosecution would have been futile. The agencies knew that if they’d been challenged, it was unlikely that they could prove the NDA payments technically qualified as campaign expenditures. Plus, as the candidate, Trump was not subject to a spending limit, as were Cohen and AMI.

But that apparently doesn’t matter to Merchan.

The judge has barred Trump from arguing that he is innocent because he was never charged by the federal authorities that — unlike Bragg — have actual jurisdiction. Merchan reasons that Trump’s non-prosecution is irrelevant because the feds may have dropped the case for reasons having nothing to do with whether Trump was guilty. Maybe so, but then how can Merchan justify admitting Cohen’s guilty plea, as well as Pecker’s/AMI’s non-prosecution and conciliation agreements? They had huge incentives to cut those deals for reasons having nothing to do with whether they were guilty, yet Bragg is being permitted to flaunt their admissions as proof of their guilt — and thus to imply that Trump, too, must be guilty.

You may be thinking, “Don’t worry, surely Trump will be able to call an expert witness who can explain campaign-finance law to the jury, including why the payments Bragg is highlighting were not campaign expenditures.” Think again.

Trump’s team asked to call Bradley Smith, an expert who served for years on the Federal Election Commission. Smith has written in the pages of National Review about why Trump’s so-called hush-money payments did not violate federal law. But Merchan has ruled that Smith will not be permitted to explain federal campaign-finance principles to the jury. Merchan reasons that such testimony would be improper because it would seek “to instruct the jury on matters of law.” In other words, the judge thinks it’s fine if the jury is instructed on campaign law by David Pecker and Michael Cohen but not by someone who actually understands it.


As you consider all of this, try to remember: Trump is not charged in the indictment with a conspiracy to steal the 2016 election by violating federal campaign law. He’s charged with falsifying business records in 2017, months after the 2016 election. As Manhattan DA, Bragg could not have indicted Trump for conspiring to violate federal law. The business-records charges in the indictment relate only to the reimbursement of Cohen for paying Stormy Daniels — they have nothing to do with payments to McDougal and Sajudin that Bragg is touting. Under long-standing legal principles, moreover, Cohen’s guilty plea to federal campaign crimes, and the Pecker/AMI non-prosecution agreements and FEC fine, are not admissible evidence against Trump.

Nevertheless, Trump is almost certain to be convicted on the charges in the indictment. Merchan is collaborating with Bragg to frame the case for the jury as a conspiracy to violate campaign laws. He has rigorously denied defense objections to that disingenuous framing. He is admitting legally inadmissible evidence, the only conceivable relevance of which is to brand the legal NDA payments as illegal campaign expenditures. And he has denied the defense the ability (a) to inform the jury that Trump was not prosecuted by the same federal agencies that cut deals with Cohen and Pecker/AMI and (b) to call a qualified expert who can explain that Bragg, who has no authority to enforce federal law, has made up a version of it that runs afoul of actual federal law.

In light of how Judge Merchan is putting his thumb on the scale for Bragg, I don’t see how Trump has much of a chance.