New York Supreme Court Judge Juan Marchan, who handed down the 34 felony convictions in former President Donald Trump's hush money trial, should never have taken the case and certainly should have resigned when Trump's legal team filed a motion to disbar him.
Yes, in response to that request, an appeals court ruled last month that Trump “has not demonstrated a clear right to challenge.” But I expect such clarity will emerge in Trump's appeal of his conviction, which will be filed shortly after the sentencing next month.
Many legal analysts who have evaluated the case have called it a disturbing aberration in how criminal law is applied and how criminal trials are conducted, and cited their favorite “most compelling” argument for Trump's victory on appeal. In my case, I point to Marchan's surprising decision to serve as justice in the first place.
It began in July 2023 when the New York State Commission on Judicial Conduct reprimanded and sent a “warning” to Judge Marchan for donating to President Biden's reelection campaign and to the anti-Republican, anti-Trump political action committees Progressive Turnout Project and Stop Republicans. New York has a blanket ban on judges making such political contributions (see below), and while Marchan's reprimand has not been made public (as reported by Reuters last month), it is likely to be much debated in the months leading up to the election.
Marchan donated $15 to the Biden campaign and $10 each to the two committees. Why would someone make such a symbolic statement if they have taken an oath to be a judge and adhere to the judicial ethics code? We cannot know, but it is quite likely that Marchan needed to plant the three flags to show the Biden campaign that he would be a good federal judge. Or maybe he just loves Biden. Or maybe Juan Marchan just hates Trump. We will never know, because the judge was not required to answer such questions.
“The warning does not include any penalties but may be considered in future cases reviewed by the state's Commission on Judicial Conduct,” The New York Times reported in May. “The letter outlining the warning was not made public under commission rules, and Judge Marchan did not release the letter.”
Reuters reported: [the New York] The Commission's rules state that a warning may be considered for future instances of misconduct.”
The New York State Commission on Judicial Ethics ruled last year that Judge Marchan did not have to resign after Trump's legal team raised issues including his donations to Democratic organizations, his daughter's Democratic activities and allegations that Marchan last year suggested a former Trump Organization executive help fight Trump in the company's tax fraud case.
But the advice of the Commission on Judicial Ethics is not binding. Justice Marchan was free to resign, and should have done so. If Justice Marchan's public support for opponents of the defendants on the bench did not disqualify him, let us hear no more (absurd) calls for Supreme Court Justice Samuel A. Alito Jr. to resign from January 6-related cases because some people disagree with his wife's choice of flag to fly.
In a recent episode of the podcast “The McCarthy Report,” former federal prosecutor Andrew C. McCarthy and National Review editor Rich Lawley detailed 10 grounds on which Trump's defense team could seek to have the sentence against Trump overturned. An appeal to delay the sentence (scheduled for July 11) would require a “plausible” claim of error, and McCarthy opined that Marchan's conduct amounted to a “whitewashing” of such a claim.
First, the Court of Appeals needs to reassess the significance of Marchan's $35 contribution. The Advisory Committee's opinion is not conclusive on the question of recusal, nor is it a decision of the First Circuit. The reasons for the denial of recusal need to be considered in the context of the numerous rulings that Marchan made against Trump during the course of the trial.
There is no question, outside of the rabid anti-Trump crowd, that Marchan lost credibility because of his donation. Marchan received a light penalty from the Commission on Judicial Conduct, presumably because the violation was Marchan's first and the amount of the donation was so small. The judge's unawareness or simple indifference to the alleged wrongdoing arising from the donation was aided by the advisory committee, which explicitly reprimanded the judge for the donation last summer. Marchan's decision not to resign is puzzling.
Consider the following details from the rules governing judicial conduct in New York State:
Article 100, paragraph 2, provides that “judges must avoid misconduct and suspicion of misconduct in all their activities.”
Article 100(4)(A) provides that “A judge must conduct all of his or her extrajudicial activities in a manner that is not likely to: (1) raise reasonable doubts about his or her ability to act impartially as a judge…”
Section 100.5(A)(1) provides that “sitting judges and candidates for judicial office shall not directly or indirectly engage in political activity, except (i) as otherwise authorized by this section or law, and (ii) to vote and indicate membership in a political party.”
Section 100.5(A)(1)(h) states: “New York judges may not make contributions to political organizations or candidates.”
Marchand is such an ardent supporter that even his robe can't hide the team jersey with a big “D” on it that he's wearing underneath.
