The former president and de facto GOP nominee sees the case as political combat in a rigged New York system, not a legal proceeding.
Donald Trump’s legal team has signaled the former president’s intention to file a lawsuit against Judge Juan Merchan, who is presiding over his New York State prosecution, in which jury selection is slated to begin in Manhattan criminal court next Monday.
Indeed, Team Trump may already have filed the lawsuit. The New York Times reports that paperwork related to a so-called Article 78 proceeding appears to be filed under seal on the court’s docket.
New York’s Article 78 (codified in §§7801 et seq. in the Civil Practice Laws and Rules) generally allows parties who allege that their rights have been violated by administrative agencies to appeal. It is generally (though not completely) unavailable to challenge rulings in judicial proceedings, particularly if they are not final and can be addressed on appeal.
Trump’s main complaints here are that the trial should be delayed and that the gag order Merchan has imposed unconstitutionally suppresses political speech. These are issues that can be raised on appeal if Trump is convicted at trial. That is just one reason among several that this eleventh-hour gambit will fail.
In attacking Merchan’s refusal to grant an adjournment, Trump’s lawyers will presumably highlight (a) the alleged discovery violation that resulted in his receiving over 100,000 pages of documents from federal prosecutors in Manhattan in just the last few weeks, and (b) Judge Merchan’s bias.
On the discovery point, as I’ve detailed, trial judges have broad discretion regarding the regulation of discovery; here, Merchan ruled that (1) the late production was not the fault of district attorney Alvin Bragg because the documents were not in their possession though they did try to get them from the feds; (2) Trump did not establish that many of the new documents were relevant (Bragg said the new material was overwhelmingly duplicative or actually inculpatory of Trump; the defense did not have an effective comeback to that); and (3) Merchan did delay the trial for three weeks, so it’s not like Trump got no relief.
As for the bias point, I believe Merchan should recuse himself because there is considerable evidence that he is not impartial. Nevertheless, as I detailed last week in marshaling some of that evidence, Merchan is relying on an opinion by a state judicial ethics body (mainly addressing his small-dollar contributions to Biden and Democrats) — and New York being an electoral (rather than appointed) judicial system that is infused with politics, it is not very sensitive to neon-flashing political bias.
The judge figures the ethical decision has him covered; as for the embarrassing evidence that his daughter is a progressive political operative whose clients include major Democratic opponents of Trump (including Biden), Merchan has apparently decided he can deflect that information by accusing Trump of intimidating “a family member of the court,” rather than addressing what Trump was complaining about (which was an attempt to expose relevant information, not to intimidate — and that, obviously, is why Bragg has not charged Trump with any crime arising out of it).
Finally, while I believe the gag order is unconstitutional — following a pattern of courts in Trump cases elevating the administration of justice over all other interests, essentially ignoring the higher interest of free political speech in a presidential campaign — Merchan has tracked the gag order issued against Trump by Judge Tanya Chutkan (who is presiding over the federal election-interference case in Washington, D.C.) as that order was modified by the D.C. Circuit federal appeals court. No New York court is going to second-guess Merchan on that — and, again, if Trump is convicted he can raise it on appeal.
For what it’s worth, and to repeat the analysis I’ve offered in the above-linked posts, I suspect that Trump is convinced that the odds are very high that he will be convicted in the Manhattan case. Accordingly, he is fighting the case as political combat; every move is about persuading the electorate, not improving his litigating position.
Bragg has taken what at most should have been a misdemeanor (that he’d never have charged against anyone but Trump, and on which the statute of limitations ran years ago) and multiplied that act into 34 felony counts (an abusive practice that Justice Department rules admonish federal prosecutors to avoid). With a jury drawn from Manhattan, and with Merchan presiding, it is difficult to imagine Trump getting acquitted on all 34 business-records-falsification charges (the chances of a hung jury are a bit better, but not much). If he is ever going to get legal relief, as in New York’s civil fraud lawsuit and its astronomical $454 million judgment despite the absence of fraud victims, it is going to come on appeal, long after the 2024 election.
For now, then, Trump’s objective is to convince the voting public that New York’s judicial system, dominated by progressive Democrats, is rigged against him, and that any conviction (or even 34 convictions) should be seen as the weaponization of law enforcement, not as his culpability for crimes.