If you’re hoping to win an appeal arguing that the trial judge’s bias was manifest in his rulings, then you’d better be accurate in describing those rulings.
Former president Trump has a good argument that Judge Juan Merchan should recuse himself from the ongoing “hush money” trial due to patent political bias. I’ve opined as much several times (see, e.g., here, here, and here). It’s also true that Merchan has bent over backward to accommodate the dubious legal theories of Manhattan district attorney Alvin Bragg, the elected progressive Democrat who has brought this unabashedly political prosecution — although the judge has sprinkled in a couple of rulings that benefit (one I discussed here, one I’ll address in a separate post).
Consistent with his MO, though, Trump is undermining a good argument by provoking dumb controversies in a transparent attempt to portray Merchan as utterly blinded by anti-Trump animus. Because this entails saying things that aren’t true, it is apt to lead reviewing courts to conclude that the true things Trump has said about Merchan are suspect. As ever, the Client from Hell is his own worst enemy.
Yesterday, I discussed one of Team Trump’s trumped up claims. Merchan is planning to conduct court sessions on Monday and Tuesday next week, the first two days of Passover. This prompted Trump attorney Alina Habba to allege that the judge would “not allow” Jewish participants in the trial, including prospective jurors, “to observe Passover.” To the contrary, as I related in yesterday’s column:
Merchan assured jurors that the trial would not interfere with anyone’s religious observances. Nevertheless, he does not believe that necessarily requires full days off next week. Passover begins at sundown Monday, so the judge has indicated that court will be in session for at least half a day. Perhaps that will be the case Tuesday, as well — I assume it will depend on the observance preferences of individual Jewish trial participants.
Merchan’s decision to sit for part of the holy days, but to adjourn the trial in a manner that gives trial participants far more time than they need to attend to their religious obligations, is pretty much the opposite of excluding Jews from the proceedings.
Then there is the claim that Merchan has refused to adjourn the trial on Friday, May 17, so Trump can attend his son Barron’s high-school graduation. Merchan has actually made no such ruling. Rather, as most trial judges would do, he has said he is reserving judgment until the day gets closer to see where the trial is at that point.
This makes sense. If, for example, the jury is deliberating at that point, no sensible judge would suspend that process — indeed, I assume that during deliberations, the trial would sit on Wednesdays, even though that is otherwise a scheduled off-day. But if the trial is not at a time-sensitive point, I’m betting Merchan will give Trump the day off he is asking for — not just because it’s the right thing to do, but because it would now make Trump look foolish and make his incessant inveighing against Merchan as a deranged “Trump-hating judge” seem, well, deranged.
I will separately address Trump’s complaint that Merchan won’t adjourn the trial for a day to allow him to attend next Thursday’s Supreme Court argument on the immunity claim he has raised in the federal election-interference case. That is a weightier complaint and it has the advantage of being true — Merchan has refused Trump’s request.
And that’s the point. If Trump is hoping an appellate court will rule in his favor down the road, he and his lawyers need to be careful — far more careful than is their wont — that the things they allege about the trial judge are accurate. Superior court judges are going to scrutinize those allegations; if there is a pattern of distortion, they are apt to discount Trump’s more well-founded complaints.