Don't buy Trump’s baseless motion for a new hush money judge
I have seldom seen a case weaker than this one, and I have discouraged lawyers from filing recusal motions in more compelling circumstances.
Former President Donald Trump is a famously difficult client. He regularly pushes his lawyers to take extreme positions, refuses to comply with court orders, insults judges (before whom the attorneys may have appeared in other cases) and all too often inveigles counsel into illegal schemes.
Trump’s most favored litigation tactic is delay, demanding that his lawyers attempt virtually anything to stave off a potential reckoning, no matter how strained or implausible the motion might be.
The latest episode in creative obstruction is a meritless last-minute motion to recuse Judge Juan Merchan, who presiding over Trump’s “hush money” case in Manhattan. The prosecution is based on Trump’s alleged falsification of business records to conceal a $130,000 payoff to porn star Stormy Daniels, right before the 2016 election.
The disqualification motion, filed only two weeks before the scheduled beginning of the trial, is based on the political activity of the judge’s adult daughter, Lauren Merchan — the owner of a consulting firm that exclusively serves numerous Democratic Party clients, including “Kamala Harris, Adam Schiff and others.”
According to the motion, Ms. Merchan has a “direct financial interest” in the outcome of the hush money case because she represents many “politicians and entities who are actively campaigning and advocating against President Trump,” some of whom “used fundraising solicitations that referenced this case” at various times over the past year. Under New York law, however, adult children's financial and other interests are not imputed to their judge-parents.
Sometimes, the validity of a motion can be best determined by its omissions and elisions. In this case, Trump’s lawyers devote nearly all of their 35-page motion to the fine details of Ms. Merchan’s extensive consulting practice, none of which seem to be in dispute. Tellingly, they make almost no mention of the actual New York law of recusal. When they finally get around to the specific legal provisions — totaling only about five pages of discussion — they quote them quite misleadingly.
For example, the motion claims that disqualification is required by a court rule when “the judge knows that a close relative ‘has an interest that could be substantially affected by the proceeding.’” This is a disingenuous misstatement of the rule itself, which limits the relationships mandating recusal to “the judge's spouse or minor child residing in the judge's household.”
While an adult daughter is obviously a close relative, it is nonetheless a relationship specifically excluded from the rule on financial interests, which Trump’s motion does not even purport to address.
The recusal motion also charges that Judge Merchan recently gave a media interview violating another court rule. Judge Merchan began the interview by saying “he wouldn’t talk about the case.” He did, however, note that his preparations were “intense,” and that he was striving “to make sure that I’ve done everything I could to be prepared and to make sure that we dispense justice.”
“There’s no agenda here,” he added. “We want to follow the law. We want justice to be done. That’s all we want.”
Although Merchan’s anodyne statements were not remotely prejudicial to Trump or biased against him, the recusal motion charges that he violated the court rule prohibiting “any public comment about a pending or impending proceeding.” Once again, the motion simply ignored essential language: “This paragraph does not prohibit judges . . . from explaining for public information the procedures of the court.”
In other words, Merchan’s interview stayed well within the rule, providing public information about the nature of his preparation without commenting on the merits or details of the case.
Finally, the timing of the motion is suspect at best. Trump brought a similar motion last August also based on Ms. Merchan’s political consulting practice, which the court denied in a six-page opinion. Although the new motion is more extensive, it includes no facts that could not have been discovered and raised much earlier and no explanation for filing almost on the eve of trial.
Having taught legal ethics for 40 years, and as the author of numerous books and articles specifically on judicial ethics, I have been consulted on possible recusal issues by scores of lawyers and judges. I have seldom seen a case weaker than this one, and I have discouraged lawyers from filing recusal motions in more compelling circumstances.
If attorneys have one obligation when seeking to disqualify a judge, it is to be straightforward about the applicable law. In this case, the omissions in the motion speak volumes about the soundness of the recusal demand. Perhaps they also tell a story about how far some lawyers will go to appease a bullying client.
Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is coauthor of “Judicial Conduct and Ethics” (5th edition) and other books and articles on legal and judicial ethics.