A Supreme Court No Longer?

by Brent E. Zepke, Esq.

On January 9, 2025, the U.S. Supreme Court issued the following 53-word ruling in Trump v. New York.

“First, the alleged evidentiary violations at president-elect Trump’s state-trial court can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the president-elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of ‘unconditional discharge’ after a brief virtual hearing.”

Why did Justices John Roberts and Amy Barrett join Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, in voting to not consider the “evidentiary violations,” many of which are alleged violations of the Constitution, and defer to a state judge’s nonbinding “stated intent” of imposing an unconditional discharge on the former president?”

Background

The case revolves around the impact of a Nondisclosure Agreement (NDA), which is legal, and its alleged involvement in Donald Trump’s presidential campaign finances.

Since federal law controls any issues involving federal elections, the Federal Election Commission, after reviewing the alleged facts, saw no reason to take any actions.

The New York Attorney General’s Office also reviewed the allegations and saw no reason to bring any action.

However, the New York City D.A. Alvin Bragg manipulated a state law (to avoid his lack of jurisdiction) to bring a case, and on March 23, 2023, Bragg (elected to office by promising to “get Trump”), charged then-former president with 34 counts of a criminal violation involving the same federal election law that the Federal Election Commission and N.Y. A.G. declined to prosecute.

The N.Y. case

Bragg’s case was assigned to Acting Judge Juan Merchan, of the New York State Supreme Court, which is the trial court in New York County. The judge refused to recuse himself even as his daughter, Loren Merchan, began selling her information from her father’s trial for millions of dollars while her father issued a gag order to prevent Trump from talking about the corruption of the judge, his daughter, D.A. Bragg, and other people, under the theory that it might influence the jury. Gag orders are usually issued against prosecutors.

Trump could not appeal until the trial case was concluded.

On May 31, 2024, a New York jury, based on the evidence Judge Merchan permitted to be shown to them, found Trump guilty, ending the threat of Trump’s talking influencing the jury.

But Judge Merchan continued the gag order on the presidential candidate.

Until Judge Merchan sentenced Trump, Trump could not appeal.

This continued against presidential candidate Trump as he campaigned against Biden, including during the debate, and then against Harris, through June, July, August, September, October, and continued after the election, to bind president-elect Trump through November, December, and into January.

Finally, Judge Merchan, a few days before the election, announced he would sentence Trump, which led to Trump’s petition to the U.S. Supreme Court, and its aforementioned opinion.

The U.S. Supreme Court

While Justices Neil Gorsuch, Clarence Thomas, Samuel Alito, and Brett Kavanaugh, dissent did not list a reason, it may have been because Article VI, Clause 2, of the U.S. Constitution provides “This Constitution and the Laws of the United States…and all Treaties…shall be the supreme law of the land: and the Judges in every State Shall be bound thereby,” known as the Supremacy Clause because it established that federal law supersedes state laws. The U.S. Supreme Court has had the power to interpret and decide disputes involving federal laws since May 29, 1790, when it was determined that it has the ultimate power among courts.

Under the Supremacy Clause, as the U.S. Supreme Court is “the supreme law of the land” it could have – should have – dismissed the case based upon the state court of New York not having jurisdiction to try a case based on federal law.

The Failed Prosecutions of Donald J. Trump

After Attorney General Merrick Garland’s Special Counsel Jack Smith (who helped D.A. Bragg) failed to successfully prosecute Trump, President Joe Biden said, “Even when individuals have done nothing wrong – and in fact have done the right thing – and will ultimately be exonerated, the mere fact of being investigated or prosecuted can irreparably damage reputations and finances.” Biden subsequently pardoned his entire family and many of his friends.

General Mark Milley, who was responsible for the Afghanistan debacle, said after receiving a pardon from President Biden, “I do not wish to spend whatever time the Lord grants me fighting those who unjustly might seek retribution for perceived slights. I do not want to put my family, my friends, and those with whom I served through the resulting distraction, expense, and anxiety.”

This is, of course, exactly what Biden, et al, did to President Trump, his family, friends, and supporters, such as General Michael Flynn, Roger Stone, Steve Bannon, and many others, including over 1500 J6ers.

Impact

In causing that to happen to President Trump, did the U.S. Supreme Court establish the precedence that in future presidential campaigns a state court judge could use a state law to allege a violation of a federal law to falsely charge a candidate and gag that candidate while requiring them to be in court rather than campaigning, and be labeled a felon?

Did Justices Roberts, Barrett, Sotomayor, Kagan, and Jackson – by deferring to the N.Y. Supreme Court instead of applying the Supremacy Clause – disempower the U.S. Supreme Court?

The unanswered questions are twofold:

1. Do we still have a Supremacy Clause?

2. How would the Court have ruled if the plaintiff had not been Donald Trump?