President Trump Should Appeal Hush Money Case To Supreme Court By A Writ Of Habeas Corpus, A Rarely Used Judicial Remedy That Can Potentially Fast-Track The Reversal Of Merchan’s Horrible Decision

2X7RYB5 New York, United States. 21st May, 2024. Former President Donald Trump speaks to reporters as he arrives for his trial at Manhattan Criminal Court in New York on Tuesday, May 21, 2024. Closing arguments are expected to start next week in the felony trial charging Trump with making illegal hush-money payments to adult film actress Stormy Daniels in 2016. Pool photo by Justin Lane/UPI Credit: UPI/Alamy Live News

Op-ed by Paul Ingrassia | Photo: Alamy

Extraordinary times call for extraordinary measures.

President Trump’s sentencing is scheduled for July 11th, less than a month away.  Of course, it is no secret why Judge Merchan decided on this particular date: it takes place four days before the Republican National Convention is set to begin, on July 15th

The hope of Team Biden, naturally, is that Judge Merchan – in collusion with District Attorney Bragg and Joe Biden’s Justice Department – will sentence President Trump, either by putting him behind bars or at the very least, on house arrest – thus denying him the opportunity to appear at the RNC in-person.

Historically, political conventions have given candidates of both parties a boost in their overall ratings.  This year that expectation still remains true.  But in a year where the incumbent has historically low approval ratings, and where most reputable polls have Biden losing to Trump in all key six battleground states, obviously Team Biden is now willing to do anything to prevent giving their opponent, President Trump, an additional ratings boost.

What is more, President Trump is careening down what looks to be an unstoppable trajectory, in part fueled by the political support he has garnered in recent weeks from the news of his unprecedented conviction.  Millions of Americans, of all partisan stripes, rightly feel outraged by the bald-faced political prosecution of the leading candidate to become the 47th President – which has never been done in America, once the world’s beacon of freedom, before. 

This sense of a weaponized, two-tier justice system has only been further emboldened with the political prosecutions of Steve Bannon, Peter Navarro, Dan Scavino, Rudy Giuliani, Christina Bobb, Mark Meadows, John Eastman, Jeffrey Clark, and countless other loyalists of the 45th President (to say nothing of the overwhelmingly peaceful demonstrators who appeared at the Capitol on January 6th), many of whom have been severe casualties of Leftist lawfare against them and the movement, which is sanctioned by Joe Biden and his apparatchiks in the Justice Department and various state agencies across the country, now with shameless abandon.

By attempting to take President Trump, Steve Bannon, and others out of the picture – the objective is to thwart their message of America First early enough in its tracks.  Bannon is a perfect example: his popular show, War Room, is watched by tens of millions of viewers each month – a figure that should only increase even more as we move closer to November.  His influence and voice can impact voting behaviors, and so the need to clamp down on him now becomes especially critical for a deeply fractured Left, who sees its message of managed decline failing to resonate, and its messenger, the geriatric Biden, doddering his way to the finish line.

The flagrantly unconstitutional gag order Judge Merchan imposed on President Trump is another example of how rogue Leftists are weaponizing the justice system, bucking every convention in the books, to give them an unfair advantage in a critical election year, by quashing freedom of speech.  The idea that Merchan would so brazenly trample over President Trump’s free speech rights is a telltale that he would also be willing to resort to other unprecedented – and downright unlawful – methods to attempt to sabotage President Trump in his tracks.

This is something that should distress every single American.  However one might feel personally about President Trump, the damage a power-hungry and vindictive judge can do to the rule of law is unquantifiable – and should not be taken for granted.  Indeed, already, Judge Merchan – in having allowed this baseless case to be brought in his courtroom in the first place – has already done tremendous (and potentially irreparable) damage to the integrity of New York’s criminal justice system, which in turn sets an ominous precedent – one that gives the green light to prosecuting anyone on the basis of their political views – for the rest of the justice system.

We observed Merchan run roughshod over the rules of evidence; he admitted hearsay and prejudicial evidence of purported prior bad acts committed by President Trump for no other reason than to smear his reputation in the eyes of jurors.  He prevented testimony from election experts, such as Bradley A. Smith, former FEC Commissioner, even though his court had absolutely no knowledge of – and arguably no jurisdiction over – prosecuting federal election law, or FECA, cases.  He allowed Stormy Daniels to spread salacious gossip that served no purpose other than to besmirch President Trump’s image, with no bearing whatsoever over the underlying charge. 

At the same time, Judge Merchan admonished President Trump’s only witness and veteran of the New York State criminal court system, Robert Costello, from the stand – lashing out at him in an unhinged tantrum because Costello was not a Merchan sycophant.  The disrespect shown against Costello, as well as President Trump’s entire legal team, in particular Todd Blanche, was completely out of line for any judge, let alone a judge tasked with presiding over a case implicating the man most likely to be the next leader of the free world. 

Finally, the jury verdict was plainly riven with reversible errors: no jury verdict, but especially on a felony charge, is allowed to mix-and-match a smorgasbord of crimes (which is exactly what occurred here), to tamper with the evidentiary threshold needed to arrive at a guilty verdict.  The Supreme Court has been crystal clear, in its decision Ramos v. Louisiana (2020), that non-unanimous jury verdicts violate the Sixth Amendment (while also raising a slew of attendant due process concerns), and are therefore unconstitutional.

In the Ramos case, Justice Gorsuch remarked: “So if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.”  What Merchan permitted in his courtroom: a sampling of at least three crimes – all of which were only vaguely defined and, with some controversy, felonious – and let the jury pick and choose amongst themselves which of the three they individually felt met the burden of proof, is plainly a violation of well-settled law. 

The jury instructions, which have been hidden under a cloak of anonymity to protect the court from further scrutiny, can serve as adequate grounds for an emergency appeal.  There are many advantages to President Trump’s attorneys filing, what is called “a writ of habeas corpus,” a rarely used judicial remedy that was recently proposed by John Eastman in Newsweek, to appeal directly to the Supreme Court before the July 11th sentencing. 

The first advantage is that by fast-tracking this appeal directly to the Supreme Court, President Trump is likely to receive the kind of relief he seeks without the additional delays of appealing via traditional procedures through New York’s appellate system.  A direct appeal to the Supreme Court can lead to it being overturned in one fell swoop based on the countless reversible errors all over this decision.  Moreover, the Supreme Court is a much more politically amiable venue for President Trump, with a 6-3 conservative majority, who will no longer be at the mercy of a Democratic-appointed judge and district attorney marching out the vindictive orders of a malicious president.   Since this is a case that is fundamentally about politics, it is best to cut to the chase and get to a more politically favorable courtroom as quickly as possible.

Another advantage in a direct appeal via a writ of habeas corpus is that it would take the wind out of the sails of Judge Merchan, who has clear animus towards the defendant, enough that should normally serve as a basis for a recusal.  By appealing the traditional way through the appellate division, Judge Merchan still would have a lot of discretion in managing the details of President Trump’s sentencing; in particular, there may be a risk of Judge Merchan imprisoning President Trump while the appeal is pending. 

As has been the case with many J6 defendants, judges have seen fit to make up rules as they go. In the case of J6 defendant Ryan Nichols, who was recently sentenced, his judge forced him to be detained in the three or so months prior to sentencing, even though that measure is as clear a violation of the defendant’s constitutional rights as one can get.  As such, there is a real possibility that Judge Merchan might want to impose something like a house arrest order on President Trump, even while the appeal is ongoing, which the Judge might say is within his discretion under New York law.

This leads to the third advantage of sidestepping all the state appeals nonsense and expediting this case to the Supreme Court directly: President Trump is not much more likely to get a fair hearing in any of the appellate courts in New York than he did in Judge Merchan’s courtroom.  These judge panels are for the most part cut from the same cloth: liberal Democrats with a personal vendetta against Donald Trump.  They are all pretty much in lockstep with Letitia James, New York’s rogue Attorney General, who memorably campaigned for her office on “getting” Donald Trump.

In short, as currently structured, the New York State criminal court system is basically like an election interference boobytrap to catch Joe Biden and Merrick Garland’s political enemies.  Rather than waste time appealing over and over again only to eventually wind up in federal court anyway, President Trump’s attorneys would be well-advised by petitioning the Supreme Court directly through a writ of habeas corpus or some other emergency motion. 

While rare, the timing for such an extraordinary measure could not be better. President Trump is the presumptive nominee for the Republican Party, now less than a month away from the RNC, in what is already unfolding to be one of the most consequential and historic presidential races in modern history.  He is being prosecuted – persecuted – by a Justice Department acting extra-constitutionally and unlawfully, which is an unprecedented move and threatens bedrock principles America has always stood for – including the integrity of the justice system and the expectation of free and uncorrupted elections. All those things are now in jeopardy. 

If there were ever a concern for election interference, this would be it. It is foreseeable how, if President Trump were sentenced to prison, Democrats in Congress might change the laws to strip President Trump of secret service protection, or jerry-rig a last-minute law that prohibits “convicted felons” from being their party’s nominee. 

On the other side of the coin, establishment RINOs who still harbor deep-seated resentment towards President Trump may try an eleventh-hour subversion of the RNC.  Responding to their Democratic friends’ calls to outlaw “convicted felons” from being party nominees, they may attempt a bait-and-switch of sorts to swap out President Trump for Nikki Haley, or somebody of that ilk, at the last minute, denying the American people their right to choose their candidate. It is no secret that many Republican politicians, still to this day with the nomination basically locked up, are vying for an opportunity to derail President Trump’s candidacy for good.  While unlikely, any kind of sentence that would prevent President Trump from appearing at the RNC in person will give these nefarious types needless fodder for subversion. 

Thus, it is best for the Supreme Court to intervene now, while there is still time, and do as much damage control as possible.  Obviously, tossing out the case in toto would be the best-case scenario.  But at the bare minimum, in consideration of the limited time we have until July 11th, a stay on the sentencing until after the election, or a procedural ruling of the kind that would stall any and all lawfare until after Election Day – as to mitigate the prospects of (at least this kind of) election interference – would be a nice consolation.

The bottom line is neither President Trump, nor the country, deserve this during an all-too-important election season.  It would wreck untold havoc upon our democratic institutions if President Trump were sentenced, in any capacity, but especially in light of how egregiously flawed Judge Merchan’s kangaroo courthouse was all throughout this charade of a trial. A writ of habeas corpus, as an emergency judicial remedy, is one that President Trump’s lawyers should thus seriously consider, and one that could potentially save the President and the rest of the country from a needlessly lengthy appeals process. One that risks empowering all the bad actors – from Merchan to Bragg to James to Biden – who make no secret about their TDS biases and prejudices and desire to keep President Trump out of the White House, over and above the sacred will of the American people.

Paul Ingrassia is a Constitutional Scholar; Communications Director of the NCLU; a two-time Claremont Fellow, and is on the Board of Advisors of the New York Young Republican Club and the Italian American Civil Rights LeagueHe writes a widely read Substack that is regularly posted on Truth Social by President Trump. Follow him on X @PaulIngrassiaSubstackTruth SocialInstagram, and Rumble.

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