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 and possibly a mistrial if he were to remain on the case, 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][1][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.
MISTRIAL https://t.co/Jt2KDd8zQW
— Sebastian Gorka DrG (@SebGorka) April 7, 2023
Judge Juan Merchan, who is overseeing Trump case, donated to Biden campaign in 2020 https://t.co/fR5M4y9uka pic.twitter.com/ms4LfSmWXL
— New York Post (@nypost) April 7, 2023
Several prosecutors and other legal figures are pointing out how problematic this is.
“While the amounts here are minimal, it’s surprising that a sitting judge would make political donations of any size to a partisan candidate or cause,” said Elie Honig, a senior CNN legal analyst, and former federal prosecutor.
Stephen Gillers, a legal ethics professor at New York University, said 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 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.
Mike Davis, a former Republican chief counsel on the Senate Judiciary Committee and founder of a conservative judicial advocacy group, said: “He donated to Joe Biden’s campaign. He should get off this case. And this judge has a history, with President Trump, in prior cases. He finds out that this judge actually donated to Biden’s campaign. So, that at least raises the appearance of impartiality – the appearance that this judge could not be impartial against President Trump.”
Karen Friedman Agnifilo, a CNN legal analyst and former prosecutor in the Manhattan district attorney’s office, called the political donations an “unforced error” for Merchan.
“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.
Former Southern California U.S. Attorney Carol Lam warned those donations could harm the public’s perception of the trial and question Merchan’s alleged impartiality.
“I think the optics are a bit problematic,” while going on to note that political donations from judges are an ethical conundrum. “To be clear, the donations were made in 2020, before Judge Merchan had either the Trump organization case assigned to him or, obviously, this case, but it is troubling optics, I think, for any judge to have made a political contribution, and then to have a party who is either the beneficiary or not the beneficiary of that political contribution before that judge in court,” she added.
