Many legal analysts who have assessed the case, finding it a disturbing aberration in how criminal law ought to be used and criminal trials conducted, have nominated their favorite “most compelling” argument for Trump’s success on appeal. Mine goes to Merchan’s astonishing decision to preside in the first place.
Begin in July 2023, when New York state’s Commission on Judicial Conduct reprimanded Merchan, sending him a “caution” because the judge had made contributions to President Biden’s reelection campaign and to two anti-Republican and anti-Trump political action committees: Progressive Turnout Project and Stop Republicans. New York absolutely prohibits its judges from making such political contributions (see below), and while the rebuke delivered to Merchan was not made public — Reuters broke the story last month — it will be much discussed in the months between now and the election.
Merchan donated $15 to the Biden campaign and $10 to each of the two committees. Why would anyone make such symbolic statements, having taken an oath to be a judge and abide by the judicial code of ethics? We cannot know, but it is plausible that Merchan needed to plant three flags to signal to Team Biden he would make a fine federal judge. Or perhaps he just loves Biden. Or perhaps Juan Merchan just detests Trump. We don’t know because the judge was never obliged to answer such questions.
“A caution does not include any penalty, but it can be considered in any future cases reviewed by the state’s Commission on Judicial Conduct,” the New York Times reported in May. “A letter outlining the caution was not released because of the commission’s rules, and Justice Merchan did not make the letter available.”
Reuters added, “Under [the New York] commission rules, a caution may be taken into consideration in the event of any future misconduct.”
Last year, New York’s Advisory Committee on Judicial Ethics ruled that Merchan would not have to recuse himself after the Trump legal team raised not only the judge’s contributions to Democratic organizations, but also his daughter’s work for Democrats and Merchan’s alleged suggestion to a former Trump Organization executive last year that he cooperate against Trump in the company’s tax fraud case.
But the judicial ethics advisory committee’s advice is not binding. Merchan was free to remove himself, and should have. If Merchan’s outright support for forces aligned against a defendant in his courtroom wasn’t disqualifying, then let’s hear no more of the (ludicrous) calls for Supreme Court Justice Samuel A. Alito Jr.’s recusal from Jan. 6-related cases because some people disapprove of his wife’s choice of flags to display.
In a recent episode of the podcast “The McCarthy Report,” former federal prosecutor Andrew C. McCarthy and National Review editor Rich Lowry detailed 10 grounds on which the Trump legal team could demand that the verdicts against Trump be tossed out. An appeal that stays the sentencing (which is set for July 11) requires a “colorable” claim of error, and McCarthy opined that the Merchan’s conduct amounted to a “coloring book” of such claims.
Just for starters, appeals courts must reassess the significance of Merchan’s $35 in political donations. The advisory committee’s opinion is not dispositive on the issue of recusal nor is the first appeals court’s decision. Those refusals to recuse will have to be studied in light of Merchan’s many rulings against Trump in the course of the trial.
Is there any doubt, outside feverish anti-Trump circles, that Merchan was compromised by his donations? He got a slap on the wrist from the judicial conduct commission, perhaps because the offense was Merchan’s first and the amount of the donations was so small. The judge’s lack of awareness regarding the appearance of impropriety arising from his contributions, or simple indifference to it, was abetted by the advisory committee, but the commission clearly rebuked the judge last summer for the contributions. Merchan’s decision not to recuse is mystifying.
Consider these particulars from New York’s rules governing judicial conduct:
Section 100.2…
Read More: Opinion | Why Trump will win on appeal: Judge Merchan should have recused