At 9:30 a.m. on Jan. 10, 2025, the curtain will fall on the longest performance of “Hamlet” in history. Acting Justice Juan Merchan will finally decide whether “to be or not to be” the judge to sentence Trump to jail. (Spoiler alert: He appears set to avoid a jail sentence and likely reversal.)
Since Trump’s conviction in May 2024, Merchan has contemplated his sentencing options. This was to be the orange-jump-suit moment many longed for over years of unrequited lawfare. They will likely be disappointed. As some of us noted after the verdict, this type of case would often result in an unconditional discharge or a sentence without jail time. That prediction became more likely after Trump was reelected in November. Limits on Trump’s freedom or liberty would likely result in a fast reversal, and Merchan knew it.
While various pundits predicted that Trump “will go to jail” after the trial, more realistic lawfare warriors had other ideas. The next best thing was to suspended proceedings and leave Trump in a type of legal suspended animation. Merchan would hold a leash on the president as a criminal defendant awaiting punishment.
But the whole point of a trophy-kill case is the trophy itself. Merchan will not disappoint. While indicating that he is inclined to a sentence without jail or probation, he will finalize the conviction of Trump just 10 days before his inauguration. In so doing, he will formally label the president-elect a convicted felon.
It will be punishment by soundbite. Trump will become the first convicted felon to be sworn into office, a historical footnote that will be repeated mantra-like in the media.
Merchan seems at points to be writing the actual talking points for the talking heads. In his order, he states grandly that the jurors found that this “was the premediated and continuous deception by the leader of the free world.” He then adds that he could not vacate the conviction because it would … constitute a disproportionate result and cause immeasurable damage to the citizenry’s confidence in the Rule of Law.”
Of course, this did not work out as many hoped. That apparently includes President Biden. Last week, the Washington Post reported that Biden was irate over the Justice Department’s failure to prosecute Trump more quickly to secure a conviction before the election. He also reportedly regretted his appointment of Attorney General Merrick Garland as insufficiently aggressive in pursuing Trump. It appears Garland was not sufficiently Bragg-like for Biden’s lawfare tastes.
The sentencing, however, will have another impact. Trump will finally be able to appeal this horrendous case. It has always been a target-rich opportunity for appeal, but Trump could now launch a comprehensive appeal until after he was sentenced.
Those appellate issues include charges based on a novel criminal theory through which New York County District Attorney Alvin Bragg not only zapped a dead misdemeanor into life (after the expiration of the statute of limitation) but based a state charge on federal election law and federal taxation violations. So, after the Justice Department declined to prosecute federal violations, Bragg effectively did so in state court with Merchan’s blessing.
The issues also include Merchan’s absurd instructions to the jury. The novel theory demanded a secondary offense, the crime that Trump was seeking to conceal by listing payments as legal expenses. Merchan allowed the jury to find that the secondary offense was any of an array of vaguely defined options. Even on the jury form, they did not have to specify which crimes were found. Merchan did not require even a majority, let alone a unanimous jury, to agree on what actually occurred.
Under Merchan’s instruction, the jury could have split four-four-four on whether this was all done to conceal a federal election violation, falsification of business records or taxation violations. Neither Trump nor the public will ever know.
Even CNN’s senior legal analyst Elie Honig denounced the case as legally flawed and unprecedented. Sen. John Fetterman (D-Pa.) recently put it more simply and called the case total “b—s–t.”
While expectations are not great for the New York legal system itself, this case will eventually go to the United States Supreme Court.
Of course, like so much else in the vortex of Merchan’s courtroom, the final leave to appeal comes at a cost. While Merchan admits begrudgingly that incarceration is no longer “practical,” Trump will now have to appeal this case over the course of his presidency.
When the sentence is imposed on Jan. 10, it is likely to feel comically downsized given the effort. After years and millions spent in the various Trump cases, Trump will likely receive an unconditional discharge and sent along his way . . . to the White House.
As predicted, the two federal cases never saw a trial in Florida or Washington, D.C. In Georgia, Fani Willis was dropped from her racketeering case, which has gone nowhere due to her own misconduct. It is like the Allied forces launching the Normandy Invasion to capture Monaco.
In the meantime, the 2024 election proved to be the largest verdict in history after years of lawfare and biased media reporting came to nothing. Merchan showed little self-awareness in claiming that he was only trying to avoid “immeasurable damage to the citizenry’s confidence in the Rule of Law” in continuing the case. Polls show the public saw these cases as lawfare and Merchan is widely viewed as causing precisely that “immeasurable damage” with his handling of the case.
Given this record, it may be fitting that the trophy from the New York case is a media talking point, while it lasts.
So, Merchan’s performance of Hamlet on the Hudson will close off Broadway long after the audience has left. The reviews will be mixed since few minds will be changed. As the protagonist himself proclaimed, “I must be cruel only to be kind; thus bad begins, and worse remains behind.”
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”
