• Show Notes

Dear Reader,

Judge Juan Merchan is a thoroughly impressive jurist. He has a strong pedigree, a former prosecutor who has put in sixteen years of distinguished service on the bench. He garners public raves from practitioners who have appeared before him: “well-prepared,” “efficient,” “practical,” and “a man of his word.” It’s clear upon reading the transcript of last week’s arraignment of Donald Trump that Judge Merchan is absolutely up to the task of trying one of the highest-profile, most-contentious cases we’ve ever seen. He’s firmly in control of his courtroom, yet entirely reasonable, practical, and courteous. 

All that said: he has to go. 

Judge Merchan should recuse himself from the Trump case. It’s the right thing to do for the prosecution, for the defendant, and for the case itself.

Let’s just call out the obvious dynamic right up front. There’s a broad and well-supported perception that Judge Merchan is a good draw for prosecutors and a bad one for Trump. So anyone who hopes to see Trump convicted wants the Judge to stay on the case, and those who want Trump to skate would like to see him bumped. But those views are short-sighted.

Without a doubt, Judge Merchan is a nice pull for the prosecution. There’s a notable pro-prosecution tilt in the favorable public commentary about him; he has been repeatedly described by practitioners as “tough” (but also “fair”) and a public defender noted that “if it’s a close call, his reputation is that he lands on the prosecution’s side.” Indeed, it seems that the Trump prosecutors wanted Judge Merchan on the case. We don’t know for sure, but it appears that the Manhattan DA’s office designated the Trump indictment as “related” to prior cases involving Allen Weisselberg and the Trump Organization, over which Judge Merchan presided – thereby directing the Trump matter to him as well. This is a common prosecutorial practice which frankly amounts to a bit of judge-shopping; if you have a new case that might be related to a prior case, and you like the judge on that prior case, you file the new matter as “related” to the old one, which means you’ll likely get the same judge assigned. But if you don’t like the judge on the prior case, then you put the new case in for the ordinary, random assignment, and hope for a better draw. We did this at the Southern District of New York, and any prosecutor who tells you this doesn’t happen just isn’t being straight with you.

Now to the problem with Judge Merchan. In July 2020, he made three donations totalling $35 to Act Blue – a partisan, Democratic party political fundraising organization. Importantly, Judge Merchan earmarked his donations to three specific causes: the “Progressive Turnout Project,” Biden for President 2020, and something called “Stop Republicans” – which describes its own purpose as “resisting the Republican Party and Donald Trump’s radical right-wing legacy.”

Yes, the donations are laughably, ridiculously, absurdly small. Even as a dishwasher for a catering company in the 1990s, I made 35 bucks in a few hours. But the problem isn’t in the amounts. It’s in the effort itself. We know that Judge Merchan took the affirmative step of going onto the Act Blue website, donating his own money (in three small batches, over two days), and specifically designating it to various anti-Trump causes. The very person against whom Biden ran – the Republican who Judge Merchan wants to “stop” and “resist” – just happens to be the same human being who now sits in the Judge’s courtroom at the defendant’s table, with his liberty at stake. 

This is simply untenable. Would we accept the opposite? What if Judge Merchan had donated – again, just a few dollars – to Trump’s 2020 campaign, and to a group dedicated to “resisting” Biden’s “radical” left-wing legacy? Should we be fine with him presiding over Trump’s criminal case then? More to the point, what if Special Counsel Robert Hur were to recommend charges against Joe Biden relating to retention of classified documents, and Biden were to get indicted – and face potential imprisonment – after he leaves office. Now imagine if the judge on the hypothetical Biden case had donated to “Trump for President 2020,” and to a group dedicated to stopping Biden’s radical left legacy. Worse yet, imagine if Biden faced trial while he was a declared candidate to regain the presidency, running against Trump. Are you just fine with that judge staying on the Biden case? Should the American public be okay with it?

One prominent legal ethics expert has noted correctly that Judge Merchan’s donations “would be forbidden” under both the American Bar Association model rules of judicial conduct and the New York state ethics rules, which squarely prohibit “any partisan political activity.” A financial donation to one political party and candidate – even of a mere $35 – qualifies, under any reasonable construction. That same legal ethics expert goes on, however, to opine that the donation “would be viewed as trivial, especially given the small sums,” and would not require recusal. This is a tortured take, lacking any workable limiting principle. Where exactly is the line? Would a $35,000 donation do the trick? Surely. How about $3,500? $350? $110.54? The judicial rules here are clear. No partisan political activity is permitted. Not some as long as it’s not too much, not a little is okay if you really dislike the defendant and think the judge might be bad for him. None. Sorry. 

Judge Merchan’s donations raise a larger problem: the appearance of a conflict of interest. Even if we take it as true that Judge Merchan’s donation would not influence or reflect his actual judicial conduct in the Trump case in any way – and, given what I know, I’d absolutely stipulate to that – the appearance here is unacceptable. We cannot have a high-stakes trial where the judge has directly contributed money to a fund dedicated to the political defeat of the defendant who now appears before him – who also happens to be a declared candidate in the upcoming 2024 election. Trump could complain that he has an “anti-Trump judge” – and he has said that about Judge Merchan, and far worse – and be technically correct. There’s just no way to tamp down that toxic appearance here.

Anyone who’s pulling for a Trump conviction and wants Judge Merchan to stay on the case has got it backwards. In fact, it’s best for the prosecution if Judge Merchan recuses himself – because a failure to do so will leave a gaping appeal issue for Trump if he loses at trial. Any conviction, presided over by a judge who donated to anti-Trump causes, would face the realistic prospect of reversal on appeal.

There seems to be a broad misperception that recusal is some sort of punishment, but that’s wrong. Recusal is not discipline or reprobation. It’s a procedure designed to protect the integrity of our judicial processes – especially in criminal cases, where defendants are entitled to conflict-free proceedings. Judges recuse themselves from cases all the time. There’s no shame in it. Conflicts of interest, or potential conflicts, happen. Recusal is the remedy, protecting the defendant, the courts, and the prosecution itself. 

Judge Merchan has been nothing but impressive on the bench. And his recusal might feel like a blow against the prospect of an eventual Trump conviction. But it’s the right and necessary thing to do.

Stay Informed,


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