As head of the Manhattan Mental Health Court, Justice Juan Merchan is accustomed to dealing with people who commit crimes and want to avoid getting locked up—but not people who are also running for president.
After a New York jury convicted Donald Trump of 34 felonies on Thursday, Merchan set sentencing for July 11. That timing raises the disquieting possibility that Trump could be handed a prison sentence days before the Republican convention officially nominates him for the presidency. He might also face probation, limiting his movements and preventing him from attending the event in Wisconsin, a crucial swing state. There’s even the comical possibility that Trump, who complains about Manhattan’s filthy streets, will be forced to do community service.
It’s an anxiety inducing period for the Trump campaign. Inside Merchan's courtroom on Wednesday morning, spokesman Steven Cheung whispered to this reporter that the campaign has essentially remained in a “holding pattern” due to the legal chaos of recent weeks. The team can only now start planning the days ahead.
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But this is also a time for Merchan to ponder what it means to punish a powerful politician who recently said he would “want to be a dictator for one day” upon returning to the White House, who in 2020 told the armed fascist Proud Boys gang to “stand back and stand by,” and who is currently facing trial in Washington for trying to remain in office after losing the last election.
The judge has 40 days. And he has a lot to consider.
Unlike federal court, where sentencing guidelines devolve into a game of point-based math that narrowly defines the punishment to come, New York law gives sweeping authority for state judges to rule as they see fit.
“The world is his oyster,” said Jill Konviser, a retired New York criminal court judge, of Merchan.
“It’s the one place we’re not micromanaged by the legislature. He can consider all the prior cases, the probation report, what the defendant said before, during, and after the trial, the lawyer’s comments in court, and he can consider the manner in which the defendant behaved himself.”
Merchan is free—some would say required—to consider Trump’s total lack of remorse. In public statements after the verdict was read, Trump repeatedly bemoaned a “rigged, disgraceful trial.”
“We didn’t do a thing wrong. I’m a very innocent man,” he said. “Our whole country is being rigged right now… we’ll fight until the end and we’ll win, because our country’s gone to hell.”
What fight was he talking about? The trial? Or the retribution he has promised if he wins? It could matter to Judge Merchan.
Trump relentlessly flouted court rules, handing over $10,000 to the 10th-floor clerk’s office for repeatedly violating Merchan’s gag order. Trump intimidated prosecutors. He intimidated witnesses. He even directed his loyalists’ rage at the judge’s daughter—alleging yet another conspiracy theory, that this was all a political sham, this time based on the fact that she runs a consulting firm that works with Democrats.
And of course, there are the basic details in Trump’s biography. As a Manhattan prosecutor targeting fraudsters, Catherine A. Christian saw judges consider all kinds of personal details when trying to determine how harshly to bring down the hammer.
“They look at criminal history and delinquency, background, personal habits, social history, economic status, and any other factor that the judge deems relevant,” she said.
In Trump’s case, Christian said, “It’s a nonviolent felony. He’s an old man. He has no criminal convictions. [But] it’s fair to say he has three open indictments in three different jurisdictions. He’s had several judgments regarding fraud, the most recent one with Justice Engoron.”
She’s referring to Arthur F. Engoron, the civil court judge at another courthouse just a block down the street, the one Trump railed against in televised daily speeches during a three-month bank fraud trial that ended with a $500 million judgment Trump still hasn’t paid.
Trump’s nonstop vitriol—calling the judge “lunatic,” “wacko,” “hater,” “corrupt”—infected the MAGA hive mind. The phone line in Engoron’s chambers was flooded with death threats and increasingly sick taunts, with the worst directed at his law clerk, Allison Greenfield. The last day of that trial was nearly postponed after someone threatened to bomb Engoron’s home, police cars speeding to his quiet neighborhood on the northern side of Long Island.
That’s another thing for Merchan to consider: his own personal safety.
“Nothing’s in a vacuum,” Konviser said. “He’s a human being, and that’s something that’ll be on his mind. But that won’t drive the results in this case.”
Not that Trump will make it any easier. On Friday, he dedicated the first three minutes of his groaning speech at Trump Tower to his utter contempt for the gray-haired man in black robes with whom he’d spent the last seven weeks.
“It was very unfair,” Trump whined. “You saw what happened to some of the witnesses on our side. They were literally crucified by this man, who looks like an angel but he’s really a devil. He looks so nice and soft.”
But he went on.
“There’s never been a more conflicted judge.” Minutes later: “The judge was a tyrant.” And then: “He’s a crooked judge… it’s very dangerous for me to say that but I’m willing to do whatever I have to do to save our country and our constitution.”
He paused for applause, then promised to “continue the fight. We’ll make America great again.”
And that’s the Catch-22 Merchan must confront. The more harshly he punishes this convicted felon, the more he fuels the threat of civil unrest. (During the trial, the judge made a single, veiled reference to the maelstrom he knows could be unleashed.) But if he goes too easy on Trump, Merchan runs the risk of weakening the public’s faith in its institutions.
“Of course there’s a risk. He’s damned if he does and damned if he doesn’t,” Konviser said.
The road to hell may be paved with good intentions, but the onramp to authoritarianism has often been built with acceptance of rule-breaking leaders.
That phenomenon was aptly captured by Milton Mayer, a Jewish-American journalist who spent considerable time after World War II living with and befriending Germans who were active members of the Nazi party—without ever revealing his background.
“It is actual resistance which worries tyrants, not lack of the few hands required to do the dark work of tyranny,” he wrote in his 1955 book, They Thought They Were Free.
The book has seen something of a resurgence since Trump’s election win in 2016, recommended by scholars of fascism. The “#Resist” movement that emerged then was made up of everyday liberals swearing to counter Trump’s nativism and corruption. Now Trump has turned his rage toward the nation’s institutions, he’s unwittingly made the justice system—even when it’s simply doing its job fairly—part of that resistance too.
“No defendant is entitled to a perfect trial,” Konviser said. “They’re entitled to a fair one. And he got one.”
