A Tale of Three Judges
Judges Merchan, McAfee and Cannon remind us that holding criminal defendant Trump accountable—and before the 2024 election—depends on who's wearing the robes
I’m not a lawyer, although it’s remarkable how often these days it seems necessary to have completed law school just to keep up with the news—thanks to the former White House occupant’s reckless rejection of the rule of law. There are moments when I second-guess my decision to skip law school, despite having done pretty well on the law boards. As a 22-year-old trying to make sense of the world, I was reluctant to commit my brain to the strictures of legal reasoning, even though I had a hearty belief in the need for justice.
A decade later, by chance, I was hired to write a chapter on marriage and family law for a Reader’s Digest book called Know Your Rights. I was the only author who wasn’t a lawyer, and the heavy research into the byzantine intricacies of this topic in each of the 50 states nearly killed me. Literally. Before finishing my 80-page chapter, I ended up in the hospital for two weeks with viral pneumonia, pleurisy and anemia. Goodness knows what three years in law school might have done to me.
But I digress.
I often defer to legal scholars and publicly engaged legal experts and skilled communicators like Joyce Vance, who writes a valuable Substack newsletter which I recommend. But the unfolding drama this week of three judges addressing criminal defendant Donald Trump struck me as unavoidable: They illustrate both differences in approach and particular challenges in determining what it really means for justice to be served—at a time when the consequences of their judgements could not be more important for the nation.
Let’s start with Judge Juan Merchan. Merchan has the unenviable task of reining in a malignant sociopath who, convinced the law does not apply to him, continues to provoke the judge—and ultimately trash the judicial system—with his wide-ranging attacks. As I noted last Friday (in “High Time to Push Back”), Merchan issued a gag order to stem the dangers facing court employees, potential witnesses and prospective jurors, noting that Trump’s “extrajudicial statements” have been “threatening, inflammatory, denigrating” and as the trial approaches in less than two weeks “the imminency of the risk of harm is now paramount.”
This week Merchan, who is overseeing the hush-money election interference case, expanded the order to specifically protect his and Manhattan District Attorney Alvin Bragg’s families. This particularly concerns the judge’s daughter, a Democratic political consultant, whose life the vile Trump has been determined to make a living hell with his abusive criticisms. Step by step, the careful judge has been pushed to escalate his response.
“This pattern of attacking family members of presiding jurists and attorneys assigned to his cases serves no legitimate purpose,” Merchan wrote in his amended order. “It merely injects fear in those assigned or called to participate in the proceedings that not only they, but their family members as well, are ‘fair game,’ for Defendant’s vitriol.” And, he added, “The average observer, must now, after hearing Defendant’s recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well.” (The emphasis is Judge Merchan’s.)
How long before this judge is pushed to confront Trump’s continued violations by holding him in contempt of court, fining him or even jailing him? Just hours after the expanded gag order, Trump posted a video clip in which a Fox commentator attacked the judge’s daughter. We’ll soon see how much this judge will take—and how courageous he will be in holding Trump accountable. He strikes me as a man who has his limits, made more clear by his refusal in a ruling Wednesday to delay the trial until after the Supreme Court decides the immunity question.
And then there’s Judge Scott McAfee, the youngest jurist on the Atlanta-area bench at 34, who is managing the Fulton County case involving interference and racketeering in the 2020 election. Yesterday the even-keeled McAfee bat down the Trump team’s attempt to throw out the case based on First Amendment freedoms.
“The defense has not presented, nor is the Court able to find, any authority that the speech and conduct alleged is protected political speech,” McAfee wrote, adding that “the Court finds that the Defendants’ expressions and speech are alleged to have been made in furtherance of criminal activity and constitute false statements knowingly and willfully made in matters within a government agency’s jurisdiction which threaten to deceive and harm the government.”
McAfee, a Federalist Society member when he was at the University of Georgia Law School, later went on to work in Democrat Fulton County District Attorney Fani Willis’ office as a trial lawyer before serving as Republican Gov. Brian Kemp’s Inspector General starting in 2021. "His experience as a tough prosecutor equips him to search out fraud, waste, abuse and corruption, and bring those to justice who break the law,"Kemp said at the time, appointing him to the bench two years later.
Given the profound stakes of this case, McAfee’s cool demeanor and apparent non-partisanship should give us confidence that he will be motivated foremost by his commitment to the law—even as he too has faced multiple threats. Those are likely to multiply if and when he sets a trial date and further confronts an ex-president bent on finding additional ways to delay at least until after the November election. That could come by August.
Florida Judge Aileen Cannon has shown no inclination to hide her efforts to serve Trump’s interests in the classified documents case. That was proven once again two weeks ago when Cannon ordered prosecutors and the Trump lawyers to submit jury instructions for two scenarios which assume the Presidential Records Act applies to the case—thereby providing Trump the basis to defend himself.
In her order, confusing even to most legal experts, Cannon wrote in terms of “unauthorized possession” each of the parties that “must engage with the following competing scenarios and offer alternative draft text that assumes each scenario to be a correct formulation of the law to be issued to the jury, while reserving counterarguments.”
As Joyce Vance has written, juries “decide issues of fact not issues of law” and “lawyers don’t write hypothetical jury instructions.” Moreover, Cannon’s requests “virtually direct the jury to find Trump not guilty, by suggesting that a president can hold onto any government property he wants to as long as he designates it as personal before he leaves office.”
On Wednesday, Special Counsel Jack Smith pushed back hard on Cannon’s order, giving a clear sign that he’s more than ready to let the 11th Circuit consider removing this judge. “That legal premise is wrong, and a jury instruction for Section 793 that reflects that premise would distort the trial,” Smith wrote. He added that the Presidential Records Act “should not play any role at trial at all.”
Indicating his growing exasperation, Smith said in his filing that the instructions Cannon requested were “asking the jury to make a factual finding with no proper legal connection” to the case. And the other scenario was worse, amounting to “nothing more than a recitation of Trump’s PRA defense” that “would result in directing a verdict against the Government.”
Well, it only took a day for the incompetent and partisan Cannon—clearly on thin ice—to switch course and assert that the Presidential Records Act “does not provide a pre-trial basis to dismiss” either the mishandling charges against Trump or the related obstruction charges. Cannon claimed that her request for jury instructions “should not be misconstrued as declaring a final definition on any essential element or asserted defense in this case,” but rather “a genuine attempt, in the context of the upcoming trial, to better understand the parties’ competing positions” in the “complex case.”
Showing her displeasure, Cannon responded to Smith’s request for her to finalize jury instructions by writing that “the Court declines that demand as unprecedented and unjust.” She ended her three-page filing with a clear confrontation with the special counsel, underscoring that she recognizes the 11th Circuit may inevitably weigh in. “Any party,” the embattled judge wrote, “remains free to avail itself of whatever appellate options it sees fit to invoke, as permitted by law.” A case that should be about serious national security breaches has turned into a case focused on the behavior of a judge who stacks the deck for the criminal defendant.
The tale of these three judges is the tale of the human face of the justice system. As much as each of us yearns for Donald Trump to be held accountable—for justice to be served and without delay—we are dependent on the skill, instinct and personality of each judge to move these cases forward. The clock is ticking, and the public deserves to know the court’s judgements in these criminal cases before the November election.
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Great piece!
Marchan’s case will go forward first.
These cases also illustrate that our legal system is not prepared for a defendant such as TFG. If convicted, the courts have to sentence TFG so as not to waste the time of those putting themselves in harms way. Smith must hit Cannon as Tribe & Katyal suggested to allow an appeal with decision and/or her removal by 11th Circuit. Fingers crossed on that.
Steven, I am glad you didn’t continue to pursue law as a profession. For us, you are where you need to be. Appreciate your clear and knowledgeable writings. Thank you!