Surprise . . . Not: Judge Merchan Denies Trump’s Recusal Motion, Setting Up September 18 Sentencing

Last week, I contended that Judge Juan Merchan is determined to pronounce sentence upon Republican presidential candidate Donald Trump on September 18 — i.e., two days after early voting begins in Pennsylvania — and would therefore deny the former president’s post-trial motions (1) seeking Merchan’s recusal from the case and (2) claiming, based on the Supreme Court’s July 1 immunity ruling, that the jury’s 34 guilty verdicts against Trump must be vacated.

Merchan has now taken step one. In the communication with counsel that I outlined in the above-linked column, the judge said he would rule on the recusal motion this week. Yesterday, he denied it in a curt three-page decision.

To recap, Merchan should have recused himself: He is a partisan Democrat, he contributed to Biden’s campaign in violation of state ethics rules, and his daughter is a progressive operative who does lucrative campaign work for Democrats, including Vice President Kamala Harris and President Joe Biden (respectively, Trump’s current and former opponents in the November election). Nevertheless, Trump had already made recusal motions prior to and during the criminal trial, and Merchan had shot him down. The issue was already raised and decided — wrongly decided, but decided nonetheless.

In his post-trial motion, Trump strained to portray a recent development — Harris’s ascension to the top of the Democratic ticket — as a “new” fact that should change Merchan’s recusal calculus. But in his previous motions, Trump had stressed Loren Merchan’s work for Harris. There was nothing new here.

As he has done in the past, Merchan relied in yesterday’s decision on an absurd opinion from a New York advisory committee on judicial ethics that his small-dollar donations to Biden’s campaign against Trump and other progressive causes were too negligible to be grounds for disqualification.

Merchan continues, moreover, to insist that Trump’s reliance on his daughter’s work for Democrats — which Trump argues has become considerably more financially rewarding since Merchan was assigned to the case — is just “innuendo” which cannot create a conflict of interest. But of course, the standard that ethical lawyers and judges apply in the recusal context is whether participation in the case creates the appearance of impropriety. It is not necessary that there be an actual conflict, just enough evidence to cause reasonable people concern. Here, where there is an abundance of evidence from which a reasonable person could find an actual conflict, a good judge would voluntarily recuse, he or she wouldn’t have to be asked to do so. But that’s not how Judge Merchan rolls.

In his aforementioned letter to counsel, Merchan said he expected to issue his immunity ruling by September 16. I argued in last week’s column that, having already had several weeks to mull over the Supreme Court’s July 1 immunity decision and the parties’ submissions on the subject, Merchan knows he is going to rule against Trump. That is why he also instructed the parties to assume that sentencing would occur as scheduled on September 18, and that they should therefore make whatever presentencing submissions they intend to make.

Merchan knows the Democrats’ three other lawfare cases against Trump are bogged down in pretrial litigation (indeed, the federal indictment in Florida has been dismissed). The sentencing of Trump is lawfare’s last chance to make a big impact on the 2024 presidential election.

Hence, expect Merchan to mete out a prison sentence. To reiterate what I’ve said on that, although the formal charges in the Manhattan case alleged business-records misstatements that are usually not prosecuted in New York and are otherwise treated as misdemeanors, Alvin Bragg, the elected progressive-Democratic district attorney, framed the case against Trump as a successful conspiracy to steal the 2016 election. Merchan was all in, endorsing the theory and navigating the jury to its guilty verdicts.

The falsification of business records, under circumstances in which neither the state nor anyone else was defrauded, is trivial. But stealing the presidency, denying Democrats of the coveted Hillary Clinton administration, is the crime of the century, at least in Merchan’s courtroom. How, then, could the judge do anything but impose a sentence of incarceration — perhaps even a multi-year sentence? (Statutorily, Trump has 136 years of prison exposure because Bragg unethically carved one transaction into 34 felonies; but New York sentencing law caps Trump’s exposure at 20 years’ incarceration.) Plus, it’s not like Merchan would actually be sending Trump to jail; the former president is sure to get bail pending appeal, and the appeal could take years.

Consequently, the significance of a prison sentence will be its impact on the presidential campaign. Logically (if cynically), that gives Merchan a greater incentive to impose a hefty sentence. This is political theater: Trump did not steal the 2016 election, he is not really going to prison, and whatever sentence Merchan imposes is likely to be reversed on appeal given the appalling errors in the record.

In any event, with recusal disposed of, prepare for the denial of Trump’s immunity claim by September 16 and the imposition of sentence two days later.