Second Ethics Complaint Filed Against NY Judge Merchan as Concerns Increase over His Handling of Trump ‘Hush Money’ Case

The unanimous jury verdict last week against former President Donald Trump in the “hush money” case involving porn star Stormy Daniels is prompting concerns about unethical behavior by New York Judge Juan Merchan. Representative Elise Stefanik (R-NY-24) filed a misconduct complaint against Merchan last week, alleging that he violated ethics rules by presiding over the case since his progressive activist daughter made money from the case.

The complaint Stefanik filed with the New York State Commission on Judicial Conduct (NYSCJC) stated that under Section 100.3(E)(1)(d)(iii) of the Rules of Judicial Conduct for the New York State Unified Court System, “a judge is disqualified from a case when the judge knows that a person known by the judge to be within the sixth degree of relationship to him ‘has an interest that could be substantially affected by the proceeding.’”

She cited language from political campaigns that Loren Merchan’s clients sent. “Donald Trump indicted by Manhattan grand jury,” the Democratic-run Senate Majority PAC emailed. “This is an important moment for our democracy, but our work isn’t over. We must continue protecting our Senate majority from GOP extremists. Please, rush in $10 (becomes $60) to help defend the Senate.”

Since the indictment, Stefanik said, “the Senate Majority PAC has raised approximately $73.6 million.” She pointed out how “U.S. District Judge Shira Scheindlin, a retired federal judge in New York City appointed by President Clinton, raised concerns about Judge Merchan’s refusal to recuse in Scheindlin’s April 5, 2024 CNN appearance.”

Stefanik said Merchan was already on warning from the NYSCJC. An ethics complaint was filed against him last year over his contributions to Biden. Merchan contributed $15 earmarked to Biden for President on July 26, 2020, and the next day made $10 contributions to the Progressive Turnout Project and Stop Republicans each, Federal Election Commission records show. The NYSCJC issued a written letter of caution to him last July over the donations.

Stefanik questioned how Juan Merchan was appointed to two criminal cases involving Trump and the case against his former advisor and close ally, Steve Bannon. “If justices were indeed being randomly assigned in the Criminal Term, the probability of two specific criminal cases being assigned to the same justice is quite low, and the probability of three specific criminal cases being assigned to the same justice is infinitesimally small. And yet, we see Acting Justice Merchan on all three cases,” she said. At least two dozen other sitting justices were eligible to be assigned.

🚨🚨🚨 I just filed an official judicial complaint with the New York State Commission on Judicial Conduct against Acting Supreme Court Justice Juan Merchan for his clear violation of the Rules of Judicial Conduct for the New York State Unified Court System due to his family… pic.twitter.com/6JjIv7XpTP

— Elise Stefanik (@EliseStefanik) May 21, 2024

The NYSCJC lists the circumstances under which it will suspend a judge. A New York City judge in Queens was removed from the bench in 2018. The NYSCJC recommended the removal of Queens Civil Court Judge Terrence O’Connor for being “belligerent, rude, and condescending,” and the New York State Court of Appeal, the state’s highest court, unanimously agreed with the decision.

However, that was a rare occurrence; it took The New York Post almost two decades of work exposing O’Connor before something was finally done. According to a Harvard Law Review article from last year, “despite the existence of various structures meant to investigate or discipline judges for misconduct, the reality is that those investigations are usually secretive, penalties are usually light, and, ultimately, most judges are allowed to remain on or return to the bench. The result is a severe lack of deterrence for bad behavior by judges.”

Of the judges, the article examined, the only one who was disciplined for actions taken while in his capacity as a judge, not outside activity, was “an Alabama judge who sentenced a single mother to 496 days behind bars for failing to pay traffic tickets, a sentence exceeding the jail time Alabama allows for negligent homicide.” That judge was merely reprimanded and allowed to remain on the bench.

A California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney, was allowed to return to the bench. A Maryland judge who was arrested for drunk driving was allowed to return to the bench, provided he took a Breathalyzer test before each appearance.

Three judges became intoxicated in the middle of the night during a conference and started a brawl that ended with two of them being shot. They were allowed to return to the bench after a suspension, even though the Indiana Supreme Court stated that they had “discredited the entire Indiana judiciary.”

A Section 1983 civil rights lawsuit could not be filed against Juan Merchan since judges have absolute immunity. The statute applies when someone acting under the authority of state or local law—generally an official or government employee—has deprived a person of rights created by the U.S. Constitution or federal statutes.

Judges can only be sued when they “acted in the clear absence of all jurisdiction.” In the landmark 1978 U.S. Supreme Court case Stump v. Sparkman, the court held that a judge who authorized a mother to sterilize her semi-disabled 15-year-old daughter did not act beyond the scope of his duties. The majority opinion held, “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction.’” The article said even if a judge acts “corruptly,” immunity applies.

Judges are not immune from criminal prosecution if they deprive people of their rights, but prosecution of judges is even rarer.

The New York Legislature could impeach Juan  Mercham. Two-thirds of both houses must vote to impeach, and the removal must be for cause. One judge who was impeached and removed from the bench in New York’s history was Democratic State Supreme Court Judge George Barnard in 1872. Barnard seized cases from lower courts regarding railroad disputes, overseeing them himself instead, and ruled in favor of two parties he preferred.

Trump supporters are furious at the verdict, with many demanding that something be done about Juan Merchan.

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Rachel Alexander is a reporter at The Arizona Sun Times, The Tennessee Star, and The Star News Network. Follow Rachel on Twitter / X. Email tips to [email protected].
Photo “Donald Trump” by Daniel Scavino Jr.