There is no reason to believe that acting justice Juan Merchan will agree to recuse himself from the case.
There is no reason to believe that acting justice Juan Merchan will agree to recuse himself from the case.
F ormer president Donald Trump is asking the state judge presiding over his criminal prosecution for allegedly falsifying business records to disqualify himself from further participation in the case.
The New York Times reports that, on Wednesday, Trump’s lawyers announced the motion to recuse acting justice Juan Merchan of the New York state supreme court’s criminal division. (In the Empire State, the supreme court is a lower court where trials are conducted by judges who are referred to as justices.)
The recusal motion is not a surprise. As we saw in the recent civil trial on E. Jean Carroll’s sexual-abuse allegations, Trump’s litigation playbook includes portraying the assigned judge as hopelessly biased against him. Trump does this by, among other things, provoking the judge into remonstrations against him, which he then promptly trumpets as evidence of judicial bias. Here, however, the former president has more to work with. Politics pervades this one-party state’s justice system, and Trump is the bane of that party’s existence.
The indictment was brought by Manhattan district attorney Alvin Bragg, an elected Democrat who campaigned for his office on a vow to use its law-enforcement powers against Trump. The Trump team has already filed a motion seeking to remove the case to federal court in Manhattan. I give the removal gambit no chance of success. It is based on the dubious theory that the state prosecution violates the Constitution’s supremacy clause by seeking to punish Trump for actions he took as a federal officer — notwithstanding that Trump was not acting in his official capacity, much less exercising federal authority, when he reimbursed Michael Cohen for hush-money payments made on his behalf to a porn star, and had the reimbursement installments booked in Trump Organization records. Still, the removal motion illustrates the former president’s desire to get the case away from Justice Merchan. In Manhattan federal court (the Southern District of New York, or SDNY), Judge Alvin Hellerstein has scheduled a June 27 hearing on Trump’s removal motion; Bragg’s office filed its opposition papers earlier this week.
After graduating from Hofstra Law School, Merchan worked as an assistant district attorney in Manhattan for five years before moving to the office of then–state attorney general Eliot Spitzer (an elected Democrat), where he held high-ranking posts until 2006. At that point, Merchan was appointed a family-court judge by then-mayor Michael Bloomberg (who, between his former and current stints as a Democrat, opportunistically ran as a progressive Republican to succeed Republican mayor Rudy Giuliani, and then as an independent to win reelection). In 2009, Merchan was named an acting supreme-court justice by then–chief administrative judge Ann Pfau, who’d been appointed to that post by the state’s longtime chief judge, Judith Kaye, an appointee of Democratic governors Mario Cuomo and Spitzer.
Merchan has thus been an acting justice for 14 years. In that capacity, he presided over Bragg’s prosecution of Allen Weisselberg, the Trump Organization’s longtime chief financial officer. Though the tax felonies to which Weisselberg pled guilty were fairly minor, and he testified for the state in its prosecution of the Trump Organization, Merchan sentenced the 75-year-old to five months’ imprisonment on Riker’s Island. The sticking point: Weisselberg has not implicated Trump personally in criminal activity. In their statement about moving for Merchan’s recusal, Trump’s lawyers maintained that the judge pressured Weisselberg to cooperate with prosecutors against Trump. Meanwhile, Merchan also presided over Bragg’s case against the Trump Organization, imposing the maximum fine of $1.6 million after its conviction on similar, minor tax offenses.
As fate — or at least New York justice — would have it, Merchan has also been assigned the case of Bragg’s indictment against Steve Bannon, the former Trump White House adviser. Recall that in 2020 (i.e., while Trump was still president) Bannon was federally indicted by SDNY prosecutors in connection with a fraud scheme involving fundraising for construction of the wall on the southern border that Trump made a signature campaign issue in 2016 but could not get Congress to pay for. Right before his chaotic exit from office following the Capitol riot, Trump pardoned Bannon. A presidential pardon, however, does not bar state prosecution for the same crime. Bragg thus thrilled his progressive Democratic base by indicting Bannon. Merchan has scheduled Bannon’s trial for November — four months before Trump’s scheduled March 25, 2024, trial.
Trump’s lawyers stress that Judge Merchan’s 34-year-old daughter, Loren Merchan, is a partner and CEO of Authentic Campaigns, a Democratic consulting firm that did work for President Biden’s 2020 campaign. She has also worked for other prominent Democrats, particularly in California — now vice president (and former senator) Kamala Harris, Governor Gavin Newsom, and Representative Adam Schiff (Trump’s nemesis on the House Intelligence and January 6 Committees, and the Democrats’ principal Trump impeachment prosecutor, who is now running for the Senate). Trump will argue that Loren Merchan’s consulting work dictates Justice Merchan’s recusal since she “stands to benefit financially” from his rulings in the case: If he decides against the former president, Trump’s lawyers contend, her stock goes up with Democratic campaigns that could retain her firm. (The Times has consulted “experts,” it says, who pooh-pooh the notion that his daughter’s financial interest is substantial enough to trigger Merchan’s disqualification.)
In addition, the Trump team notes that Merchan has made contributions to Democratic campaigns, albeit in small-dollar amounts — $15 to Act Blue that was earmarked for Biden’s 2020 campaign against Trump, and $10 each to two other Democratic groups, one of which is called “Stop Republicans.”
Obviously, an objective, rational person would harbor doubt that Justice Merchan, given his significant Democratic Party ties and Trump’s status as the Democrats’ anathema, can be fair and impartial. In my view, a scrupulous judge would step aside in these circumstances to avoid even the appearance of impropriety. But don’t hold your breath. In light of how politics pervades the New York legal system (where district attorneys and many judges are elected because of their partisanship rather than appointed because of their legal acumen), the appearance of impropriety is a feature, not a bug.
Merchan declined to recuse himself when Trump Organization lawyers moved for him to do so in last year’s case. There is no reason to believe he will do so in what stands to be one of the highest-profile criminal trials in American history: An elected progressive Democrat’s prosecution of a top candidate for the Republican presidential nomination, smack in the middle of the GOP primaries.