OPINION: This article may contain commentary which reflects the author's opinion.
The New York judge overseeing Manhattan District Attorney Alvin Bragg’s case against former President Donald Trump could himself face an ethics complaint and investigation for his own past actions.
Several legal experts and former prosecutors believe that Judge Juan Merchan may have violated New York’s Code of Judicial Conduct by making three donations to Democrats in 2020, adding that could be grounds for an ethics investigation, according to Breitbart News.
Per Section 100.5 of the New York Code of Judicial Conduct, sitting judges cannot “directly or indirectly engage in any political activity.” Among the prohibited political activity: “(h) soliciting funds for, paying an assessment to, or making a contribution to a political organization or candidate.”
The New York State Advisory Committee on Judicial Ethics’s yearly-updated handbook points this out clearly: “A sitting judge may not make political contributions at any time, even to a U.S. presidential candidate or to a federal congressional candidate outside of New York State (Opinion 11-146; 22 NYCRR 100.5[A][h]).”
And, according to the American Bar Association’s Model Code of Judicial Conduct, a judge shall not, unless permitted by law, “solicit funds for, pay an assessment to, or make a contribution to a political organization or a candidate for public office.”
“However, Merchan — a New York state judge — made three political donations in 2020, according to public Federal Election Commission records,” Breitbart pointed out.
FEC records reveal that Merchan contributed $15.00 to Biden for President, Trump’s opponent, on July 26, 2020, through ActBlue. On the following day, July 27, 2020, he made a $10.00 donation to the Progressive Turnout Project, an organization focused on encouraging Democrat voters to turn out. Additionally, he donated $10.00 to Stop Republicans, which is part of the Progressive Turnout Project that aims to resist the Republican Party and Donald Trump’s “radical right-wing legacy,” also through ActBlue, Breitbart News reported.
— New York Post (@nypost) April 7, 2023
The judge who presided over Donald Trump's arraignment appears to have donated $15 to Joe Biden's 2020 campaign, federal campaign contribution data shows. https://t.co/gYPZx9qKOQ
— NBC News (@NBCNews) April 6, 2023
Stephen Gillers, a legal ethics expert and law professor at New York University, told CNN that regardless of the amount, such donations are not permitted under New York’s own rules.
“The contribution to Biden and possibly the one to ‘Stop Republicans’ would be forbidden unless there is some other explanation that would allow them, he said.
Gillers stated in an email to Breitbart on Wednesday that any violations of the N.Y. Code of Judicial Conduct would be investigated by the New York State Commission on Judicial Conduct and could lead to removal.
“Violations can lead to a warning, private discipline, public discipline and more serious sanctions like removal. Serious discipline (e.g. removal) is decided by the N.Y. Court of Appeals,” he said.
But Gillers told CNN he believes the donated amounts would be “viewed as trivial” and therefore would “absolutely not” provide any grounds for a recusal or legal challenge. Other legal experts disagreed, however.
According to Brett Tolman, former U.S. Attorney for the District of Utah and former counsel for the Senate Judiciary Committee, Merchan’s violation should absolutely lead to his investigation and recusal.
“This should facilitate a judicial misconduct investigation and the Judge should recuse because of such,” Tolman told Breitbart News.
CNN legal analyst Karen Friedman Agnifilo, who also served as a former prosecutor in the Manhattan district attorney’s office, opined that the donations made by Merchan may have created an “appearance of a conflict.”
“Judge Merchan has a reputation of being a fair down the middle judge, however, donating to a defendant’s political rival can cause the appearance of a conflict, even where there is none, and creates an unforced error, in this case involving Trump,” she said.
Tolman noted that even the appearance of a conflict is grounds for recusal.
“A judge has two issues to address which could necessitate a recusal. First, is to determine if there is an actual conflict and second, if not an actual conflict, the judge must determine if recusal is needed to ‘avoid the appearance of a conflict,’” he told Breitbart.
“I believe under either analysis, Judge Merchan should recuse himself. He has direct conflict by making financial investment in the direct opponent of Trump, an announced candidate for President. Secondly, the appearance of conflict looms large in this case given the donations, prior cases against Trump, and his daughter’s conflicts,” he said.