There has been much talk about the decision of Judge Juan Merchan not to recuse himself from the Trump trial in Manhattan. I do believe that Merchan should have recused himself but I admit that this can be a difficult question. I wanted to address this question since it continues to be raised by the former president and others in the controversial trial.
Notably, many insisting that Merchan not recuse himself previously called for Justice Clarence Thomas to recuse himself from any Trump-related cases due to his wife’s work for the GOP and Trump. Conversely, many who defended Thomas (including myself) are suggesting that recusal would have been warranted in this case.
To be honest, there is room for concern on both sides that bias may dictate our analysis. So let’s take a look at the comparison. In the end, I believe that it is reasonable to hold that neither Thomas nor Merchan were required to recuse. Merchan has credible arguments against mandatory recusal. However, I still believe that he should have recused himself to avoid the appearance of a conflict.
I have previously written about why Thomas was not required to recuse himself from any election matter. I view those arguments as meritless.
Then why is Merchan any different. Thomas has a political activist wife and Merchan has a political activist daughter. Loren Merchan is the president of Authentic Campaigns, a Chicago-based political consulting firm with clients including Rep. Adam Schiff (D-Calif.), who was the lead prosecutor in Trump’s first impeachment trial, and the Senate Majority PAC, a large Democratic fundraiser.
It is also troubling that this was not a random selection. The chief administrative judge picked Merchan due to his supervision of other Trump-related cases.
New York law 100.3 e(1)d(iii) states “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where the judge knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such a person has an interest that could be substantially affected by the proceeding.”
The argument of critics is that the daughter is obviously within “the sixth degree of relationship” and would be “substantially affected” by a conviction with her Democratic donors. The problem with this argument is that any child involved in political activisim could be accused of being substantially affected by a conviction with political implications. The question is the limiting principle. Frankly, in another Trump related case (like the one involving the Trump corporation) I would not view the personal donations or the daughter’s major political role to be as problematic. It is this unique case and this historic moment that tips the balance for me.
The reason for my view in favor of recusal is three-fold.
First, Merchan is the trial judge, not one of nine justices in an appellate review. While the recusal standard is the same for trial and appellate judges (though Supreme Court justices are not technically subject to those rules), the context for a trial judge is different. Merchan would make highly sensitive decisions in a trial where appeals are limited until after a possible conviction. He would then have to make immediate decisions on the admissibility of evidence or objections at trial.
Second, this is no ordinary trial as the first prosecution of a former American president. Recusal is a judgment call on not just actual conflicts but the appearance of a conflict. His daughter is a major Democratic operative and raised a large amount of money for people like Schiff who have targeted Trump. With many Americans viewing this case as politically motivated (as I do), Merchan seriously undermined the credibility of the process by refusing to step aside. The result was not just his family’s political interests being raised by critics, but a lead prosecutor who came directly from the Biden Justice Department and was once a paid DNC adviser.
Finally, with Trump, critics were calling for recusal in any Trump or election related case. This is a case that specifically seeks to put Trump in jail. There was a stronger case for recusal of Thomas in a case dealing with the compelled release of material that might have included his wife’s communications. The latter arguments were ridiculously overbroad in my view. This case seeks to jail Trump where the family connection is more concerning.
Ultimately, it comes down to judgment. “Not only must judges actually be neutral, they must appear so as well.” People v. Novak, 30 N.Y.3d 222, 226 (2017); 22 N.Y.C.R.R. §100.2 (“A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.”). While the New York bar has supported Merchan in his decision, it has stressed that such decisions are very contextual with a case-by-case analysis. New York State Bar Association Committee on Professional Ethics, Opinion 673 (1995)(“Whether a judge’s impartiality might reasonably be questioned is necessarily a question of fact in each case. Even if the judge believes that he or she can be impartial, the judge should recuse himself or herself if an objective, disinterested observer could reasonably question the judge’s impartiality.”). I believe that the balance and appearances in this case heavily militate in favor of recusal.
Judge Merchan, in my view, used poor judgment in refusing to step aside in the interests of both his court and justice. Again, while I consider this is a tough call in many respects, I believe that Merchan did not serve the interests of his court or public in failing to step aside. There are other judges who do not have such a strong family connection to the political campaign against Trump. The American people and the court deserved a judge who was free of this excess baggage.
