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Left: Judge Juan Merchan poses for a picture in his chambers in New York, Thursday, March 14, 2024. Merchan is presiding over Donald Trump’s hush money case in New York (AP Photo/Seth Wenig). Right: FILE – Former President Donald Trump is escorted to a courtroom, April 4, 2023, in New York (AP Photo/Mary Altaffer, File).
In a bit of legal déjà vu, Donald Trump has responded to a gag order by trying to sue his trial judge, this time after Acting New York Supreme Court Justice Juan Merchan attempted to rein in the former president’s out-of-court statements about witnesses, “family members of any counsel, staff member, the Court or the District Attorney.”
Ahead of a scheduled April 15 trial date in Trump’s falsification of business records case, defense lawyers on Monday lodged an appeal with the Appellate Division of the New York Supreme Court, First Judicial Department, in the form of an Article 78 suit against Merchan — reportedly as part of an attempt to lift the gag order the judge updated last week and to move the trial venue out to somewhere other than Manhattan to ensure a fair proceeding.
The gag order modification was a response to Trump’s social media postings about the judge’s daughter, identifying her by name, including photographs, and railing against her political consulting for Democrats.
The Article 78 suit is a path Trump has taken twice before, without success in either instance. Those cases were brought against his civil fraud trial judge, New York Supreme Court Justice Arthur Engoron.
Trump first sued Engoron in September 2023, as he has now with Merchan, to halt the start of trial.
The previous case stemmed from Engoron’s rejection of Trump’s argument for a trial delay based on New York Attorney General Letitia James’ (D) “callous disregard” of a First Judicial Department appellate ruling on the statute of limitations for certain claims in the civil fraud case. The judge rebuffed those arguments as “completely without merit” and Trump responded by suing.
In the ensuing weeks, Engoron found Trump liable for fraud at the summary judgment stage of the case. Trump went on to drop the lawsuit.
A second Article 78 suit was filed against Engoron in November 2023, that one in response to the judge’s gag orders, which were issued after the former president posted about the court’s clerk during the trial.
Engoron issued a gag order last October barring Trump from verbally attacking the judge’s court staff after the former president called the judge’s principal law clerk, Allison Greenfield, Democratic Sen. Chuck Schumer’s “girlfriend” and accused her of “running the case against [him]” or “co-judging.”
Thereafter, Engoron barred Trump attorneys Christopher Kise, Clifford Robert, and Alina Habba from “making any public statements, in or out of court, that refer to any confidential communications, in any form, between [the judge’s] staff and [the judge].” The judge remarked that the attorneys’ “long speeches alleging that it is improper for a judge to consult with a law clerk during ongoing proceedings, and that the passing of notes from a judge to a law clerk, or vice-versa, constitutes an improper ‘appearance of impropriety”” were baseless.
The second lawsuit failed one month after it was filed, and Trump declined to testify in the case.
Trump’s latest Article 78 move happens on the same day that the Manhattan District Attorney’s Office vehemently opposed a “renewed” defense demand for Merchan’s recusal.
