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Alvin Bragg’s Legal Assault On President Trump Is Lawfare Of The Worst Kind: Strategizing A Legal Counterattack

  |   By Lou Dobbs Staff

Between judicially disqualifying conflicts of interests to overbroad gag orders that outrageously violate President Trump’s First Amendment rights as a criminal defendant, the President’s lawyers have multiple grounds on which to appeal this present show trial, which makes a mockery of the rule of law currently underway in lower Manhattan.  One would have to scour the annals of American legal history to find another case quite like the one brought by Alvin Bragg and aided and abetted by Matthew Colangelo, a former top-level official of Joe Biden’s Justice Department, and prosecuted with inglorious vengeance by the highly conflicted Judge Merchan.  The fact that Bragg’s kangaroo show trial is being prosecuted against Donald Trump at all, shamelessly denying him the respect and decorum the office of the President deserves, even in the courtroom, is bad enough.  But that it is being waged against the leading candidate, by most leading polls, to become the 47th President of the United States, and leader of the free world, is many steps beyond the pale.  Worse yet, that leading candidate has been so unceremoniously stripped of the traditional formalities of the presidential office – a laundry list of indiscretions that includes proper respect in the courtroom, protection of his fundamental due process rights, the right to speak and protest the trial proceeding where necessary.  These indiscretions collectively prove that Judge Merchan condemned President Trump before his trial has even really commenced, depriving him of the most important pillar of the Anglo-American legal system: the presumption of innocence.

On these grounds, President Trump’s attorneys must request intervention by a higher tribunal, to either stay the proceeding, or better yet, put an end to this sham kangaroo trial that epitomizes what so many Americans realize as clear as day: a flagrant case of election interference.

The judicial system fortunately provides the defendant tools to appeal an utterly conflicted and corrupt proceeding.  All President Trump’s attorneys would need to do is file a motion with the court requesting the judge recuse himself.  If the judge refuses to recuse himself, despite being so troublingly conflicted, President Trump’s attorneys will then have the option to appeal the order the court must thereupon issue.

Method Number One: Collaterally Attack Case Through Article 78 Proceeding

There are several ways to appeal a court order of this kind.  The first, more conservative approach, would be a kind of collateral attack on the proceeding – which challenges the case on grounds other than the underlying merits of the claim – through what is called an Article 78 filing under New York law.  In New York, lawyers have the option to appeal via an Article 78 proceeding to challenge the conduct of judges, including state criminal court judges whose offices are created by statute.  There are two reasons why an Article 78 appeal might be easier, and more advisable, than a direct interlocutory appeal to federal court.  The first reason is that Article 78 appeals would help streamline the process, given that President Trump’s case was brought in state court already, where such appeals are commonplace.  It is much more complicated to appeal a criminal case, especially one implicating the thorny and often confused legal issues controlling the proceeding here, to federal court than by way of an Article 78 proceeding, which arises under state law and is thereby governed by much similar rules and principles than those which govern federal court.

The second, perhaps even more compelling, reason favoring an Article 78 appeal, rather than an appeal to federal court, is that under the New York State Constitution, parties have even more expansive First Amendment rights than those that would typically arise under the First Amendment.  In the seminal 1988 decision, O’Neill v Oakgrove Construction, the Second Appellate Division of New York held that the “protection afforded by the guarantees of free press and speech in the New York State Constitution is often broader than the minimum required by [the Federal Constitution].”  Thus, if the gag order serves as the basis for the Article 78 collateral attack, at least on paper, President Trump has reason to be optimistic because of how speech rights are traditionally protected in New York State, which heavily disfavors any infringements whatever on speech – more so than what would give rise to a valid challenge under First Amendment grounds alone.

Accordingly, President Trump’s lawyers have strong grounds to make an Article 78 appeal on the basis of the unconstitutional scope of the gag order that Judge Merchan arbitrarily imposed upon him, which fails to meet normal strict scrutiny analysis under federal law, as I have previously detailed at length.  Therefore, if the gag order fails to pass muster under the Supreme Court’s own precedent from Brandenburg v. Ohio (1969), which governs when courts may prohibit speech in exceptional cases, surely the gag order here would likewise fail to meet the even more rigorous standard for speech prohibitions that arise under New York State’s Constitution.

Another issue that might be included in an Article 78 appeal is the issue of judicial misconduct: in other words, the conflict of interest serving as the basis for the appeal.  Again, New York law is arguably more rigorous than federal law on this issue.  Under New York law, “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned…”.  An important ground for dismissal is when “the judge knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such a person … has an interest that could be substantially affected by the proceeding.”

One such interest that can be substantially affected by the proceeding is an economic interest.  Namely, the economic interest of Loren Merchan, Judge Merchan’s daughter, who happens to fall “within the sixth degree of relationship” stipulated under the rule.  As exhaustively discussed elsewhere, Loren Merchan works as a senior officer and fundraiser for a political consulting firm, Authentic Campaigns, whose “featured clients” include none other than the Biden-Harris campaign and various far-left lawmakers, including Adam Schiff and Kathy Hochul, with interests that would, to say the least, create a strong impression of impropriety that severely undermines Judge Merchan’s ability to rule fairly and impartially.  Moreover, as also reported previously, Judge Merchan’s own wife allegedly works for Attorney General Letitia James’ office, who campaigned on “getting” President Trump and whose office put strong political pressures on both Merchan and Bragg to prosecute the 45th President in this criminal trial – to say nothing of presiding over President Trump’s concurrent civil cases taking place in New York State.  Furthermore, reputable sources have reported that Loren Merchan’s firm profited, to the tune of at least $93 million, off the political persecution of Donald Trump happening in lower Manhattan.

Under the federal canons of judicial conduct, a judge must recuse himself whenever the judge, his spouse, or a relative “within the third degree of relationship” of the judge is “a person who has more than a de minimis interest that could be substantially affected by the proceeding.”  Reading these two rules together, it is notable, first, that the state ethics code encompasses relatives to “the sixth degree of relationship,” giving strong reason to believe that, much like speech law, the standard for impropriety under New York State laws governing judicial misconduct is even more rigorous than federal law.

Second, a daughter presiding over a business that raises tens of millions of dollars for political candidates and campaigns, and stands to – with very good reason – earn a windfall if her father happens to prosecute and convict the man poised to be her firm’s client’s political opponent in the upcoming presidential race, would, I conjecture, qualify as an example (if not textbook example) of “more than a de minimis interest in the case.”  Ditto too is Judge Merchan’s wife, Lara Merchan, if the reports alleging an employment connection, as special assistant to Letitia James, between her and Letitia James’ office prove true, given how much James’ political career rests on “getting” President Trump, which she irrefutably made the central issue of her statewide race for Attorney General, and short-lived race for Governor.

Beyond these damning revelations, the fact that Judge Merchan himself is a noted and long-term donor – directly via donations, and indirectly via PAC monetary contributions – and friend of Joe Biden should, even if the facts brought about the daughter and wife did not come to light, alone be sufficient grounds for a recusal.  In a case involving a presidential candidate taking place just months before Election Day, politics are necessarily all-controlling.  There is no getting around it.  Hence, to any reasonable observer, the courtroom drama in lower Manhattan cannot be understood other than as a brazen act of election interference by the incumbent president in Biden against his likeliest successor in Trump.

Otherwise, what else explains the seven-plus years of delays in which this case was kicked down the road from the DOJ to the FEC to Bragg’s office, not once, but twice, only to finally be prosecuted at a politically convenient hour: the moment when Donald Trump became, for the third time in as many cycles, the presumptive Republican nominee.  There were also various changes in the law (all of which in hindsight look like strategic meddling by Democrats in the New York state legislature making preparations to jury-rig the legal system in advance to prosecute Donald Trump) made over the years.  These include a change in the statute of limitations that allowed Bragg to prosecute this case well beyond the original limitations period.  In addition, there was a 2018 change in tax law that made hush money write-offs for sexual indiscretions unlawful.

To date, not one of Merchan, Bragg, Colangelo, James, or Biden’s DOJ could explain why it is imperative to commence a six-week trial right here and now, rather than postpone it – for just another seven months – until after election day.  To channel our eloquent Commander-in-Chief: For God’s sake it’s been seven years already, what the hell is another seven months going to make a difference!  The choice to prosecute President Trump now, perhaps at the summit of his political clout, where most reputable polls have him trouncing Biden in the upcoming general election, just reeks of improprieties – and indeed, election interference – of the worst possible variety.

Method Number Two: Direct Interlocutory Appeal To Federal Court

Separately from the Article 78 proceeding, President Trump’s lawyers also have the option of making an interlocutory appeal directly to federal court – either to the Second Circuit or, better, Supreme Court.  Under well-settled federal law, the Supreme Court has permitted interlocutory appeals from state to federal court, in the decision Lauro Lines S.R.L. v. Chasser (1989), if the appeal satisfies the three-prong test of what the High Court called “the collateral order doctrine.”

The collateral order doctrine says that appeals are permitted as long as the following elements are met:

1.      The outcome of the case would be conclusively determined by the issue;

2.      The matter appealed was collateral on the merits;

3.      The matter was effectively unreviewable if immediate appeal were not allowed.

In President Trump’s criminal proceeding, all three elements are easily met.  The matter appealed – the recusal order – would conclusively determine the outcome of the case because if the Judge is found conflicted under New York or ABA canons regulating judicial ethics, there would be strong grounds for a mistrial.  Even if President Trump’s attorneys appealed just on the gag order issue, that still would likely satisfy the collateral order doctrine – because President Trump’s ability to speak about, and expose, the conflicts of interest implicating Judge Merchan and his family would reveal a disqualifying economic interest in the case that goes directly to the reason why it was brought in the first place.  If it can be shown that Judge Merchan had a judicially disqualifying economic stake in the case, which should be easy here because he incontestably does, the entire case would have to be dismissed on grounds of unfair prejudice to the defendant and his constitutional rights.  Indeed, there is strong reason to believe that there would be no case without Judge Merchan – in other words, a recusal alone would not mitigate the prejudice to President Trump here, because that prejudice runs to the heart of the proceeding itself, regardless of the identity of the judge presiding over the case.

At the bare minimum, however, the judge’s myriad conflicts of interest serve as more than sufficient grounds for an order for recusal – there is absolutely no way President Trump’s due process rights can be guaranteed so long as Judge Merchan remains on the case.  If a recusal order is successfully appealed, given how damaging Judge Merchan’s conflict was in the case at bar, the court will likely have to stay this proceeding until after the election, in order to avoid a repeat of the same dangers here that severely harmed President Trump’s fundamental rights – which stand as a grievous indictment of New York’s judicial system.

The other two elements are also easily met.  The matter appealed, whether on the gag order or recusal issue, is collateral to the merits of the underlying legal claim: which involves an alleged fraudulent business records scheme.  What is more, if Judge Merchan is not recused, the matter cannot be reviewed unless on appeal.  Put differently, the only way President Trump can request relief here is by appealing any ruling Judge Merchan might issue on a recusal order.  Given the probability that Judge Merchan will deny any order filed by his attorneys for his recusal, there will be a basis for an interlocutory appeal to either state or federal court.

Why else might a direct interlocutory appeal to federal court, rather than to state court via the aforementioned Article 78 proceeding, be more desirable?  Well, for one thing: the legal basis for it should not be that hard given that federal questions run amok all throughout this case.  Whether dealing with President Trump’s First Amendment rights, or denial of his due process rights – or even the alleged FEC violations at issue here – there are more than sufficient grounds, as a matter of procedure, to kick this case into federal court for appeal.  Of course, federal crimes require federal jurisdiction: but there are likely jurisprudential grounds, not the least of which has to do with the issues controlling here, especially with the FEC, that implicate the interstate commerce clause, that would create the nexus to make the underlying issue a federal question.

I mean, this is the President of the United States, we are talking about, who also happens to be an out-of-state resident!  So, the question to be raised: why is this a state court matter at all seems so obvious – and yet has bizarrely not been talked about enough, despite being a central and unaddressed issue, either by the legal pundits or the prosecution.

Bragg has hidden the ball so much with regard to his theory of criminal liability here, which can only be attributed to one of two reasons: 1) he has no basis for bringing this case in state court because has no idea what on earth he is doing, or 2) he realizes that to the extent a crime is ascertainable at all amid Bragg’s legal muddying of the waters, it is emphatically one that warrants prosecution in federal court, not state court, ergo explaining the lack of transparency on his end.  Given the fact that Bragg is so heavily relying on a federal prosecutor from Biden’s DOJ, Matthew Colangelo, to help him contrive a theory of criminal liability here, is all the more reason to believe that this matter belongs in federal court, not state court.

That being said, I discussed advantages for collaterally attacking this matter via an Article 78 proceeding rather than making a direct interlocutory appeal to federal court.  The first reason is that Article 78 proceedings might be easier: similar rules and legal principles would apply for both the criminal proceeding and Article 78 appeal.  The second reason is that New York State Law, at least in theory, is even more protective of both President Trump’s speech rights and offers an even more rigorous standard for judicial ethics than what is observed by the ABA.

But the advantages to a state court proceeding should be placed alongside the advantages of a direct interlocutory appeal to federal court.  These advantages may be described as follows: 1) even though state law is supposed to apply more generous speech protections, considering the current cast of characters in charge of New York’s law enforcement – from Hochul to James to Bragg to Merchan – it is improbable that President Trump’s state constitutional rights would be adequately protected.  It would thus be incumbent upon federal actors, either judges or prosecutors, to apply New York law faithfully – or, in the alternative, use the federal standard to exonerate President Trump from the endless indignities of New York’s corrupted judicial system.   2) The second reason favoring federal appeal is that federal courts – and the Supreme Court, above all – has the greatest means to establish a national standard for the ongoing criminal (and potential other) proceedings against President Trump.

Now that Donald Trump is officially the presumptive Republican nominee, it would be much easier for the Supreme Court to simply issue a stay on all proceedings against him until after November 5th.  That, the Highest Court of the Land has the power to do – and should do, if it truly cares about the rule of law, the protection of individual rights, and safeguarding the republic from nefarious and gratuitous political prosecutions, particularly during a hotly contested election year.  An emergency interlocutory appeal to the Supreme Court would be the best way to preserve our democracy from the subversive forces, acting at the behest of Biden’s weaponized Department of Justice, working actively to expel President Trump from the political arena.  Granted, it may be a difficult feat to pull off, given all the time constraints and political hurdles, but President Trump’s attorneys should treat the persecution against him as a serious act of legal warfare, one that must be responded to in kind – using every tool in the arsenal – or risk defeat by our enemies, hellbent on bringing down the remaining morsels of the American republic for all time.

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