Judge Merchan: Dismiss Trump’s case or Recuse Thyself!

Donald J. Trump’s rivals have chased him like Wile E. Coyote hounding the Road Runner. In a real-life Looney Tune, this clever, colorful creature escaped all the anvils, boulders, and explosive birdseed placed on his path.

Rather than four years behind bars, Trump just earned four more years as president of the United States, and he did so in spectacular fashion.

Jack Smith, Fani Willis, Letitia “Lucretia Mac Evil” James, Merrick Garland, and others in the Hate Trump Bar all look as if cigars have gone ka-BOOM in their pouty little mouths. And that nasty smell is Jack Smith’s shabby beard smoldering.

Nonetheless, the most absurd of Trump’s legal tortures — Manhattan District Attorney Alvin Bragg’s business records ronde — remains mercilessly alive.

Judge Juan Merchan’s hearing in Manhattan Criminal Court on Tuesday morning will determine whether Trump’s enemies finally abandon the lawfare strategy that turned him into a sympathetic figure and exposed them as the lawless monsters that they are, or if these cretins will continue the corrupt approach that boomeranged right into their foreheads. Have these people learned anything, or will they carry on with their — what is the right word — garbage?

Merchan should dismiss this landfill of a case and spend the rest of 2024 on hiatus. Yes, as even Merchan can testify, it has been a tough year — on both sides.

If Merchan cannot bring himself to bang his gavel and say, “Case dismissed,” he at least should do what he should have done months ago: recuse himself from this matter.

Merchan’s recusal is even more vital, now that Merchan’s daughter and her company are under a federal microscope.

With all the tumult of recent months — Trump’s trials, a long GOP primary season, the Democrats’ anti-Biden coup d’état, Trump’s twin assassination attempts, and so much more — it might have gone unnoticed that the U.S. House Judiciary Committee has subpoenaed Loren Merchan and Authentic Campaigns Inc. Lawmakers want to know the extent to which they used Trump’s case to raise Democrat campaign cash.

Loren Merchan directed digital persuasion for the Kamala Harris for the People campaign in 2019. Authentic Campaigns has performed extensive work for Kamala. Indeed, the consultancy brags about it. The website features at least three mentions and images of Trump’s just-annihilated rival for the White House. “Biden–Harris” appears twice. “Kamala Harris for President” is on Authentic Campaigns’ “Full Client List.”

Loren Merchan and her company worked for the political rival of a defendant in her father’s courtroom. They literally are under subpoena by members of Trump’s political party. So, this is an easy call for Judge Merchan:

Recuse!

Even if Loren and Authentic Campaigns stopped working for Harris, the fact that they feature her on their website to promote their capabilities, recruit new clients, and retain existing ones creates, at least, a clear and present appearance of a conflict of interest for Judge Merchan. Even if he is holistically honest, the mere suspicion that he might be hearing this case while thinking about his daughter, her career, and her company corrodes public trust in the justice system like acid on steel.

This is dreadful for every American.

Several attorneys and legal scholars I consulted agree, although others advise caution:

• “Pursuant to 22 NYCRR 100.2, a judge must always avoid even the appearance of impropriety and must always act to promote public confidence in the judiciary’s integrity and impartiality,” Edward Paltzik tells me. The veteran litigator, active in Florida and New York adds: “It is evident that Justice Merchan’s daughter — as president of the leftist political consulting firm ‘Authentic Campaigns’ — directly or indirectly benefits from the prosecution of President Trump, over which the Justice presides. Therefore, Justice Merchan should have recused himself long ago.”
• Andrew D. Cherkasky, CEO of Golden Law, Inc. said: “The House’s subpoena of Judge Merchan’s daughter is one more reason he should be recused from the case. This subpoena itself seems unlikely to shift the current position of the judge and appellate court denying the defense requests for recusal. This is the type of situation the court should have, and perhaps did, consider when first refusing recusal. I believe President Trump and those who watched this trial deserve to understand how deeply involved Merchan’s daughter is with President Trump’s political opponents.”
• “I believe that, if the reports are true, that Judge Merchan’s daughter is a paid consultant for Kamala Harris, Judge Merchan must now recuse himself from the Trump case,” declares John Yoo, a distinguished professor of law at the University of California at Berkeley and alumnus of the U.S. Justice Department. “Better yet, Judge Merchan should recognize that his trial violated the Supreme Court’s ruling on presidential immunity, and he should vacate the jury verdict before he steps aside.”

Yoo cites clause E(iii) of New York’s judicial conflict-of-interest rules. It specifies that a judge should stand down when he “has an interest that could be substantially affected by the proceeding.”

This might be a chicken-and-egg scenario. However, the fact that Merchan’s daughter and her company got subpoenaed shows that her interest in that company already has been “substantially affected by the proceeding.”

If Bragg were prosecuting Donald J. Smith, that would have no impact on Merchan’s daughter or her company.

If Bragg were pursuing Trump, but in the court of Judge Juan Gomez, this would have no influence on Merchan’s daughter or her firm.

But Bragg is prosecuting Trump in the court of Judge Merchan, and this has caused his daughter and her company to get subpoenaed.

This suggests that Merchan’s daughter was “substantially affected by the proceeding.” That fact should trigger this statute’s E(iii) clause, disqualify Judge Merchan from this case and require his recusal.

One wonders, if Merchan refuses to recuse himself, at what point can Trump and his lawyers run to an appeals court with their hair on fire, scream “Bloody Murder!” and get Merchan catapulted from this case?

Must Judge Merchan appear on surveillance cameras receiving a bag of cash from his daughter marked, “Daddy’s Share of the Anti-Trump Campaign Funds I Raised for My Clients”? Even if such a video existed and were televised worldwide, Judge Merchan still would cling to this case, like a lamprey on a rainbow trout.

Former Federal Prosecutor Andrew McCarthy favors Merchan’s recusal. However, he thought so long before this subpoena arose. He explains:

The subpoena by the House committee does not improve the case for recusal. It exposes the case for recusal (marginally more than it was exposed before). But a defendant and his allies cannot foment a conflict by agitating that the judge is biased. If they could, then any defendant could force a judge’s recusal by (a) accusing the judge of bias, and then (b) taking provocative actions, and (c) using the judge’s inevitable stern or even hostile reaction to those actions to claim that the reaction demonstrates bias.

To my mind, the case for Judge Merchan’s recusal/disqualification is overwhelming — even absent the daughter’s lucrative and partisan relationship with Trump’s political opponents, the judge’s contribution to Biden’s 2020 campaign violates New York judicial ethics law. The judge keeps waiving around an ethics panel opinion that says small-dollar contributions are too negligible to be the basis for disqualification; that gets it exactly wrong: the relevance of a small-dollar contribution is that the donor is trying to show that he’s on the team, not necessarily intent on affecting the outcome.

McCarthy makes a powerful point regarding the small-dollar aspect of Merchan’s political donations to Democrats. According to CNN, he gave $15 to Biden’s 2020 campaign and $10 each to the Progressive Turnout Project and its Stop Republicans PAC.

$35? Who cares?

Campaigns care plenty about small donations. They trumpet them all the time to show, as McCarthy says, that tens of thousands or even millions of Americans are “on the team.”

Wearing a Yankees baseball cap shows that you are a Yankees fan, without spending $36,000 for a pair of season tickets or unspeakable millions for an equity share in the Bronx Bombers.

Judge Merchan’s $15 makes him a member of Team Biden, just as much as a $15 hat or T-shirt would identify him as a member of Team Yankees.

Conversely, Professor Alexander Volokh of Emory Law School harbors doubts about recusal.

A judge is allowed to have family members who are politically active, because, even though it’s reasonable to tell judges not to be politically active, it’s not reasonable to impose that requirement on a judge’s family members (who, after all, are separate people), or to presume that a judge is biased in a particular direction because of family members’ political activity. (For example, consider Justice Thomas and his wife, Ginni, a conservative activist.) Clint Bolick is an Arizona Supreme Court justice. His wife, Shawnna, is a very conservative Arizona state legislator. I’m sure they get recusal motions all the time!

Volokh wonders if the House subpoena might “introduce very perverse incentives, if a political party could engineer the recusal of a hostile judge just by attacking the judge or his family members?”

“What about Ginni?” is the perfect rejoinder for Judge Merchan’s defenders. And, yes, congressional Democrats someday could subpoena her, just to force Clarence Thomas to recuse himself from an expected 5-4 case. The same goes for other politically active relatives of judges across the federal bench. And why not try this with state-level judges?

“I have to say that I’m personally skeptical of recusal claims that stem from the actions of a judge’s family members,” says UCLA Law Professor Eugene Volokh (Alexander’s older brother). “Back in the day, Judge Stephen Reinhardt was married to Ramona Ripston, the head of the Southern California ACLU chapter; Third Circuit Judge Jane Roth was married to Senator William Roth (R – Delaware); Ohio Supreme Court Justice Pat DeWine’s father is the Buckeye State’s Governor, Mike DeWine; Chief Justice William Rehnquist’s daughter, Janet, was Inspector General of the U.S. Department of Health and Human Services.”

If all is fair in love and war, then the same holds for lawfare. As in war, the time arises to throw the closest stick of Dynamite. But remember: It could be hurled back into the trench from whence it came.

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