Judge Merchan faces critical decisions as Trump’s trial nears its end

His instructions, given after closing arguments that could come by Tuesday, will be a critical part of the jury’s effort to understand the logic of the prosecution’s case — that falsifying business records constituted felony election interference.

In the first criminal trial of a former U.S. president, it is up to Merchan, a judge for 18 years, to decide how to clearly lay out the legal questions the jury must resolve.

Both sides will supply proposed instructions. Some will come from standardized language devised by the New York courts, but others will be specifically worded to define exactly what the jury must find to convict Trump, the presumptive Republican nominee in this year’s presidential election.

It will fall to Merchan to adopt a suggestion from either side for each instruction, use a standardized version, or write one himself if necessary.

“Jury instructions do have an outsized impact on a trial,” said Renato Mariotti, a defense attorney and former federal prosecutor in Chicago who has been closely following the trial. “Because the jury is going to look at the evidence, and then they’re going to map that evidence to the instructions. Trials are won and lost in the word of specific jury instructions.”

Merchan, 61, has shown an easy confidence in making quick, decisive rulings, even as Trump and his supporters have publicly questioned his impartiality and tried to draw him deeper into the type of political maelstrom that judges typically work hard to avoid.

With cameras barred from court by state law, he is allowing reporters to send written updates on the trial using electronic devices in his courtroom and in an overflow courtroom with a video feed. In an interview before the trial, Merchan told the Associated Press: “There’s no agenda here. We want to follow the law. We want justice to be done. That’s all we want.”

Mariotti said Merchan had done a solid job in managing the trial by promptly picking a jury that has remained intact since the start, issuing rulings that were legally unremarkable, and handling Trump’s violations of a gag order without placing the defendant in jail.

“He has managed to get this almost to the finish line, and that’s no small accomplishment,” Mariotti said.

One key moment came during the detailed sexual testimony of adult-film actress Stormy Daniels, which experts said might present a legal pothole for the case if Trump is convicted.

Before Daniels began, Merchan told prosecutors to stay away from explicit details of her alleged sexual encounter with Trump, which the former president denies. The judge said he didn’t want sensational but irrelevant information to taint the jury’s fact-finding in the case, which alleges that Trump falsified records of his reimbursement of Cohen for hush money that Cohen provided to Daniels. Prosecutors say the records classified the reimbursements as legal fees, when they were really a 2016 campaign expense, and that the mislabeling was an effort to keep the payments from becoming public or linked to Trump’s campaign.

New York prosecutors repeatedly asked Daniels for details, however, including whether Trump wore a condom. Defense lawyers objected frequently, though not to the condom question, and Merchan even objected to one question himself, without waiting for the defense. He ordered some of Daniels’s answers struck from the record.

Still, the jury heard Daniels discuss not only Trump’s failure to wear a condom, but also her claim that Trump seemingly blocked her exit before their encounter and her claim to have “blacked out” some of her memories, some of which could be inferred to mean the encounter was nonconsensual, even if Daniels denied that.

Twice, the defense moved for a mistrial, saying Daniels’s testimony was too prejudicial, and too far removed from the business records charges, for a jury to remain unaffected. Merchan denied both motions. “The Court has done everything that I can possibly do to protect both sides and to ensure fairness,” he said.

Mariotti said Merchan “gave the right cautionary instructions to the prosecution in advance. I think the head-scratcher there is why there weren’t more objections from the defense,” a point the judge also made in denying the mistrial motions.

“I don’t think anyone can fault the judge for not jumping in” and objecting to prosecutors’ questions, Mariotti said. “It’s not his role.”

If Trump is convicted, and an appeals court rules that Merchan should have excluded more of Daniels’s testimony and that it could have affected the jury’s verdict, the verdict would be undone. Prosecutors would have to decide whether to retry Trump — a reminder of the importance of Merchan’s management of the case.

The judge is the youngest of six children in a family that immigrated from Colombia to Queens, when he was six years old. He has said he began carrying groceries for tips at age 9 and worked as a dishwasher at a diner in high school and as a night manager while he was working on his business degree from Baruch College.

He earned his law degree from Hofstra Law School in 1994; his first job as a lawyer was as an assistant prosecutor in the same Manhattan district attorney’s office that brought the indictment against Trump.

Merchan is no stranger to high-profile cases. In 2012, he oversaw the case of the “soccer mom madam,” a woman charged with running an escort service for wealthy and powerful men. And in 2022, he presided over the trial of the Trump Organization for tax fraud. He is also handling the pending fraud trial of former Trump adviser Stephen K. Bannon, accused of soliciting donations for a border wall with Mexico and then pocketing the money.

While policing his courtroom, Merchan seems well aware of the wider audience watching this particular prosecution. At one point, he spotted Trump cursing under his breath while Daniels was on the witness stand, which wasn’t audible to those sitting behind Trump in the courtroom. The judge called a recess and summoned the lawyers to the bench.

Many judges might have upbraided Trump in front of the courtroom, or even in front of the jury, as a reminder of who’s boss. Instead, Merchan quietly instructed Trump’s lawyers to tell their client to stop his visible reactions, saying he would not tolerate such behavior.

“I am speaking to you here at the bench because I don’t want to embarrass him,” Merchan said.

Each day when court opens, Merchan has looked straight at the defendant and said, “Good morning, Mr. Trump,” a practice he employs in all of his hearings. Unlike most defendants, Trump doesn’t often answer.

The trial has taken Wednesdays off so Merchan can handle the court’s mental health and veterans dockets, in which criminal defendants are placed in rehabilitative programs rather than jail. The judge has overseen this docket for 13 years, and he pays careful attention to each case, speaking directly to each person as he gauges their progress.

“We want you to do well,” he told one defendant recently. “We want you to take advantage of this opportunity.”

For a defendant who’d lost a bag with all of his documents, Merchan instructed a lawyer to help the man acquire a new state identification card. For another, he began by asking the defendant about the New York Knicks, revealing his own passion for the team.

“I can’t watch the games,” Merchan said. “I get too stressed,” though he did know that Knicks’ star Jalen Brunson was “playing lights out.”

Merchan’s level tone rarely wavers, whether he’s discussing counseling appointments with a mental health defendant or doing battle with Trump’s defense attorneys. After the judge called one defense request “absurd,” and attorney Emil Bove began to respond, Merchan said, “Don’t interrupt me.” When Bove protested that he wasn’t interrupting, the judge sternly replied without raising his voice: “No, you are. Have a seat.”

Trump has repeatedly criticized witnesses and others involved in the case, both in public remarks and on social media. Merchan issued an order before the trial telling Trump to stop it.

In the vast majority of criminal cases, that would be the end of the issue. Instead, the “gag order” has become the focus of Trump’s daily diatribes outside the courtroom, as he repeatedly denounces the “corrupt thug” judge — behavior that also is virtually unheard of for defendants.

After Trump falsely declared, “I’m not allowed to testify, I’m under a gag order,” Merchan spoke to him the next day in court, reminding him that the order “restricting extrajudicial statements does not prevent you from testifying in any way.”

Merchan found Trump in contempt of court 10 times, while rejecting four other claims of violations by the prosecutors. He refused the prosecution’s request to let the jury know about his contempt rulings, and he has granted a number of defense motions that limit what evidence the jury will hear.

The judge agreed to block the playing of Trump’s “Access Hollywood” tape to the jury, in which Trump discussed grabbing women’s genitals, saying it was too prejudicial. He also barred prosecutors from referring to Melania Trump having a newborn during some of Trump’s alleged extramarital sexual encounters. The judge forbade the use of Trump’s deposition from his civil sexual assault and defamation lawsuit with writer E. Jean Carroll, though that may change if Trump takes the witness stand.

And though Trump is the only one subject to Merchan’s gag order, the judge last week instructed prosecutors to take their own steps to quiet key witness Michael Cohen, who has freely bashed Trump online while the defendant is prohibited from returning the favor.

On May 6, about midway through the trial, Merchan told Trump he would consider throwing him in jail if he continued to violate the gag order, adding that jailing a former and possibly future president was “the last thing I want to do.”

Merchan, who would have the job of deciding Trump’s sentence if the jury convicts him, said he was “aware of the broader implications” of putting him behind bars for violating the gag order.

He also reminded the defendant who was running this trial.

“At the end of the day, I have a job to do,” the judge said, “and part of that job is to protect the dignity of the judicial system and compel respect … So, as much as I do not want to impose a jail sanction, and I have done everything I can to avoid doing so, I want you to understand that I will, if necessary and appropriate.”