Judge In Alvin Bragg Trial Has A Not-So Subtle Habit Of Putting His Thumb On The Scale For The Prosecution

Judge Juan Merchan’s rulings have largely seemed to favor Manhattan District Attorney Alvin Bragg — and hamstrung Donald Trump’s defense — since the trial of the former president began.

Merchan has granted many requests made by prosecutors such as allowing both Stormy Daniels and Michael Cohen to testify, while often denying requests by the defense, such as their request for greater notice of what witnesses would be testifying next. The cumulative effect of Merchan’s rulings appears to have given an advantage to the prosecution, a fact which several legal experts have pointed to as making the case ripe for appeal.

Though Merchan did allow many objections raised by the defense Tuesday in response to Stormy Daniels’ testimony on her alleged sexual encounter with Trump, saying at one point that the degree of detail she was going into was “unnecessary,” Daniels was only on the stand because he denied in March a motion by the defense to prevent her from testifying.

“Locating and purchasing the information from Daniels not only completes the narrative of events that precipitated the falsification of business records but is also probative of the Defendant’s intent,” Merchan wrote in March.

Bragg’s case centers on business records Trump allegedly falsified in reimbursing his former attorney Michael Cohen for paying Daniels’ to keep her quiet ahead of the 2016 election. But the alleged affair itself is not a key piece of the case, making the relevance of her testimony unclear.

When motioning for a mistrial Monday, defense attorney Todd Blanche noted the only reason the prosecution asked the questions it did, aside from pure “embarrassment,” was to “prejudice the jury.”

Merchan did not grant the defense’s motion for a mistrial following Daniels’ testimony. Instead, he told the defense he was surprised they did not voice more objections while she was on the stand.

“That, of course, ignores the standing objection of the defense to Daniels even appearing, and specific objections to the broad scope allowed by the court,” George Washington University law professor Jonathan Turley wrote Wednesday in response to Merchan’s decision.

John Malcolm, vice president for The Heritage Foundation’s Institute for Constitutional Government and former deputy assistant attorney general in the Justice Department’s Criminal Division, told the Daily Caller News Foundation he was not surprised Merchan denied the mistrial motion.

“Judges are loath to declare mistrials, especially when the defendant’s attorney fails to raise an objection as the questions are being asked or the answers are being given,” Malcolm said. “The judge will give the jury a limiting instruction telling them what they should ignore or how they should evaluate some of the more salacious parts of Stormy Daniels’s testimony, but as Todd Blanche said, ‘You can’t unring a bell.'”

“If Trump is convicted, the failure to grant a mistrial will certainly be one of the issues he would raise on appeal,” he continued.

Amid Daniels’ testimony, Merchan also reprimanded Trump for cursing and shaking his head in response to her description of spanking him with a magazine, privately warning his attorney during a sidebar that Trump’s reaction was “contemptuous.”

“It has the potential to intimidate the witness and the jury can see that,” Merchan told the defense.

Daniels isn’t the only example. Merchan also denied in March Trump’s bid to prevent his former attorney Michael Cohen from testifying, despite Cohen’s credibility issues.

Cohen continually attacks Trump on his social media, calling him names like “Von ShitzInPantz” and even taking to TikTok to discuss the trial while it is ongoing, yet Trump cannot respond due to the gag order, a fact defense attorneys have noted in court. Trump’s defense has also highlighted Cohen’s lack of credibility, saying that his “entire financial livelihood depends on President Trump’s destruction.”

In August 2018, Cohen pleaded guilty to charges that included making false statements to a bank, tax evasion and campaign finance violations related to the Daniels and Karen McDougal payments. He also pleaded guilty in November 2018 for lying to Congress, and a federal judge suggested he committed perjury while testifying at Trump’s civil fraud trial.

Cohen has not yet testified but is expected to do so soon.

Former federal prosecutor Andrew McCarthy noted Tuesday that the judge also ruled that Cohen can testify about his guilty plea to campaign finance violations, which he said “should have been excluded.” The decision to include them, he argued, will likely benefit the prosecution.

“There is a high probability — especially the way Bragg is urgently calling the jury’s attention to Cohen’s guilty pleas — that the jury will wrongly conclude that Trump must be guilty of campaign-finance violations because Cohen has already pleaded guilty to them,” he wrote. “Yet the judge is allowing Bragg’s team to elicit and stress the guilty pleas. Merchan again rationalizes that it is up to the jury to assess Cohen’s credibility, but as with Daniels’s testimony, credibility is beside the point.”

The judge has also prevented the defense from asking an individual they intend to call as a witness, former Federal Election Commission Chairman Bradley Smith, about whether the Daniels’ payment constitutes a campaign finance violation. Smith has said that “hush money payments to mistresses are not really campaign expenditures.”

Merchan, however, ruled that Smith may not “offer opinion testimony regarding the interpretation and application of federal campaign finance laws and how they relate to the facts in the instant matter, nor may Smith testify or offer an opinion as to whether the alleged conduct in this case does or does not constitute a violation of the Federal Election Campaign Act (“FECA”).”

Smith will only be allowed to testify generally about the background of the FEC, along with its structure, function, laws it is responsible for enforcing and definitions of terms like “campaign contribution,” per Merchan’s order.

During the trial, prosecutors have not notified the defense of who they will call as the next witness until the day before, a practice they implemented because they did not want Trump “tweeting” about them. Merchan denied the defense’s bid to make the prosecution disclose who they would call sooner, saying he “can’t fault them” for their concern.

Along with everything else, Merchan imposed a gag order that restricts Trump from speaking about witnesses like Cohen and Daniels, who have publicly attacked him. It also prevented Trump from responding to President Joe Biden’s remarks about the trial, his attorney noted during a hearing last week.

Merchan has found Trump violated the order ten times and threatened that future violations could result in jail times.