“I think it would have been wise for the judge in the Donald Trump case to add just a few consequences instead of just a basic ‘you are guilty but because you are the president-elect you will not have any consequences.’ I would have imposed a ban on speaking about the judge, jury or anyone else involved with the case. This would then finally stop the constant harassment coming from the president-elect. Your thoughts?”
— T. Teter, Richmond, Va.
Hi, T.,
According to Judge Juan Merchan, he gave Trump the lenient “unconditional discharge” sentence because he thought he had to.
Here’s what the judge said, in part, when sentencing Trump on Jan. 10: “After careful analysis in obedience to governing mandates and pursuant to the rule of law, this court has determined that the only lawful sentence that permits entry of a judgment of conviction without encroaching upon the highest office in the land is an unconditional discharge.” If you listen to the audio of Merchan’s remarks (you can find that here), you can hear him emphasize the word “only.”
By definition, an unconditional discharge lacks conditions. So Merchan couldn’t add any.
And when it comes to the sort of speech restrictions you suggest, those resemble the gag order that Trump was under during this New York criminal case. But the order expired when the case ended. Therefore, the judge couldn’t impose such a restriction going forward; certainly not with an unconditional discharge, nor when sentencing someone who will soon be president — a privileged legal status that the courts have seen fit to treat most delicately.
At any rate, Merchan might agree with you that it would have been proper to give Trump a harsher sentence — or a sentence with literally any sort of penalty, even a nominal one. The law is only as good as the consequences for breaking it. But to your point that a gag order would stop Trump from lashing out against various actors in the legal system, I’m not quite sure that it would. During the trial of this case alone, Merchan found Trump to have violated the gag order 10 times. That a defendant was found to have violated a court order 10 times and practically escaped unscathed reminds us that the law is only as good as the consequences for breaking it. That brings us back to the whole treating-presidents-with-kid-gloves thing. All in all, I think it’s better not to have the pretense of yet another legal condition hanging out there if there’s no meaningful consequence for violating it. Better, perhaps, to drop the charade — as the unconditional discharge did — and stop pretending that presidents are subject to the law like everyone else. By now, we know full well that’s not the case. Have any questions or comments for me? I’d love to hear from you! Please email deadlinelegal@nbcuni.com for a chance to be featured in a future newsletter.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
Latest Post
Recommended
