Statement in Support of Justice Juan Merchan
On March 26, 2024, New York County Supreme Court Justice Juan Merchan, who is presiding over the criminal trial of former President Donald J. Trump, issued a restraining (i.e., “gag”) order limiting former President Trump from, among other things:
Making or directing others to make public statements about (1) counsel in the case other than the District Attorney, (2) members of the court’s staff and the District Attorney, or (3) the family members of any counsel or staff member, if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is likely to result.[1]
In making this order, the Court expressly considered the former President’s argument that as the “presumptive Republican nominee and leading candidate in the 2024 election he must have unfettered access to the voting public to respond to attacks from political opponents and to criticize these public figures.”[2]
Justice Merchan’s gag order finds that the former President’s “extrajudicial statements went far beyond defending himself against attacks by public figures,” and that the former President’s statements were “threatening, inflammatory, denigrating, and [that] the targets of his statements ranged from local and federal officials, court and court staff, prosecutors and staff assigned to the cases, and private individuals including grand jurors performing their civic duty,” which resulted in fear on the part of targeted individuals and increased security resources needed to protect certain individuals and family members thereof.[3]
This gag order is similar to orders issued by New York state Supreme Court Justice Arthur Engoron[4] and United States District Judge Tanya Chutkan.[5] Both prior orders were upheld on appeal.[6]
On March 27, 2024, notwithstanding the Court’s prior findings, the former President used social media to baselessly accuse Justice Merchan of bias vis-à-vis statements falsely attributed to Justice Merchan’s daughter.[7] That same day, New York State’s Office of Court Administration announced that the statements the former President was attributing to Justice Merchan’s daughter were investigated, and that the investigation concluded, “[t]he X, formerly Twitter, account being attributed to Judge Merchan’s daughter no longer belongs to her,” and that “it is not linked to her email address, nor has she posted under that screen name since she deleted the account. Rather, it represents the reconstitution, last April, and manipulation of an account she long ago abandoned.”[8]
On March 29, 2024, the former President continued to use social media to attack Justice Merchan’s daughter, claiming, among other things, “[h]is [d]aughter, Loren, is a [r]abid Trump [h]ater, who has admitted to having conversations with her father about me, and yet he gagged me.”[9]
These claims prompted the Manhattan DA to request the judge “clarify or confirm” the scope of the March 26, 2024 gag order, and to direct the former President and presumptive Republican nominee to “immediately desist from attacks on family members.”[10] The DA’s office further argued that the gag order’s ban on statements meant to interfere with or harass the court’s staff or their families makes the judge’s daughter off-limits from the former President’s rhetoric, and requested that the former President be punished for further violations.[11]
In response, the former President’s lawyers argued that “the express terms of the gag order do not apply in the manner claimed by the people, which they seem to acknowledge by suggesting the need to ‘avoid any doubt,’” and that “the gag order has been publicly interpreted in the way that President Trump reads it further supports the defense position on the order’s meaning.”[12] The former President’s attorneys also requested an opportunity to brief “the constitutional problems attendant with any additional improper restrictions on protected campaign speech—which would implicate First Amendment rights that belong to not only President Trump but also the public . . . where the family member referenced in the pre-motion letter is actively supporting adversarial campaign speech by President Trump’s political opponents.”[13] This request seemingly echoes the arguments initially made to the Court prior to the implementation of the gag order.
Today, the Manhattan District Attorney filed a Supplemental Filing Regarding the Court’s March 26, 2024 Order Restricting Extrajudicial Statements[14], saying this:
Defendant’s dangerous, violent, and reprehensible rhetoric fundamentally threatens the integrity of these proceedings and is intended to intimidate witnesses and trial participants alike—including this Court. . . . To the extent that the original March 26 Order did not already prohibit this behavior, this Court can and should clarify or extend the Order to protect family members of the Court on the record described below, and should warn defendant that any future disregard of the Order will result in sanctions under Judiciary Law §§ 750(A)(3) and 751.
New York’s Rules of Professional Conduct mandate a lawyer decline or terminate a representation where “the lawyer knows or reasonably should know that the client is bringing the legal action, conducting the defense, or asserting a position in the matter, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person.”[15]
Those rules also mandate truthfulness in statements to others and preclude lawyers from making false statements of fact, creating or preserving false evidence, participating in or counseling a client to engage in illegal or fraudulent conduct, engaging in any conduct involving dishonesty, fraud, deceit or misrepresentation, engaging in conduct that is prejudicial to the administration of justice, or making false statements concerning the qualifications, conduct or integrity of a judge.[16]
The former President’s statements focusing on Justice Merchan’s daughter echo arguments previously raised by his counsel when attempting to disqualify the judge.[17] At the time, a New York State ethics panel determined that Justice Merchan’s daughter’s work had no bearing on Justice Merchan’s impartiality.[18]
In denying the prior motion to disqualify Justice Merchan, the Court ruled that the former President had “failed to demonstrate that there exists concrete, or even realistic reasons for recusal to be appropriate, much less required on these grounds.”[19]
In light of the foregoing, the New York City Bar Association expresses its unequivocal support for the way in which Justice Merchan is handling this issue. Justice Merchan’s actions in this proceeding are consistent with this state’s ethics rules and well settled national and international ethics requirements, by which the dignity and independence of the judiciary are maintained.[20]
The former President’s decision, on the eve of trial, to broadcast baseless claims that have previously been the subject of a motion for recusal—and which may be covered by the current gag order’s prohibition on statements made about family members of court staff—appear to be an attempt to derail the mechanics of the judicial process by casting aspersions against a non-party to the action for statements that an investigation determined were falsely attributed to her and serve only to harass the judge.[21]
The integrity of the judicial process rests upon the ability to restrict intimidating and harassing behavior that interferes with or otherwise threatens the judicial process in keeping with the fundamental principles of independence and the adherence to ethical obligations. We call on the former President and his attorneys to uphold the integrity of the judicial process.
The City Bar thanks the Chair of the Task Force on the Independence of Lawyers and Judges, Christopher Pioch, and the Chair of the Task Force on the Rule of Law, Marcy L. Kahn, for serving as primary drafters of this statement.
[1] https://bit.ly/3J2B32Y; see also https://bit.ly/3VGcSPc; https://to.pbs.org/49ejCag
[4] https://bit.ly/4cEEdHA; see also https://bit.ly/4cI8JQU
[5] https://bit.ly/3xhM3qH; https://bit.ly/3J2sPI7
[6] https://bit.ly/4cEEdHA see also https://bit.ly/4aAYH2m. Judge Chutkan’s gag order was largely upheld, and slightly narrowed to except the Special Counsel, https://bit.ly/3TKfyZJ. Of particular significance, the D.C. Circuit noted that Judge Chutkan found in her gag order ruling that “’when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.’” Id.
[8] https://bit.ly/3PLcefF; see also https://nyti.ms/49ivisI
[10] https://bit.ly/49jaCAK; https://bit.ly/3xgseQh; see also https://bit.ly/4cCJgbH
[11] Id.
[12] https://bit.ly/49prXYK; see also https://bit.ly/3J6ER2Y
[14] https://bit.ly/3PLL7kN; https://bit.ly/3VK7I4O
[15] See 22 NYCRR 1200, Rule 1.16(b)(4). See also 22 NYCRR 1200, Rule 3.1(a) and (b)(2) and (3).
[16] See 22 NYCRR 1200, Rules 1.2(d), 3.3, 3.4(c), 3.6(a), 4.1, 4.4(a), and 8.2(a), and 8.4(c) and (d).
[17] https://bit.ly/4aD48xO; see also https://bit.ly/3TXAU7d
[18] https://bit.ly/4atc4l4; see also https://bit.ly/3TXAU7d
[21] See note 8, supra.
