Bouncing Trump Appeals So Nice NY Court Had To Do It Twice
And Trump lawyers manage to be both late and too early on recusal appeals.
(Photo by Curtis Means-Pool/Getty Images)
As Donald Trump’s false business records case heads to the jury next week, District Attorney Alvin Bragg is not yet tired of winning. Yesterday the DA’s office notched two more incremental victories in a pair of rulings from the Appellate Division.
First the appellate panel rejected a bid to move the trial from Manhattan to some place where people hate him less, like Staten Island, or perhaps Alabama.
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Trump previously moved to adjourn the case due to “pretrial publicity,” complaining of a jury pool which “voted overwhelmingly in favor of President Trump’s opponents in the 2016 and 2020 elections.” Justice Juan Merchan denied the motion, noting that the defendant is “personally responsible for generating much, if not most, of the surrounding publicity with his public statements, which were often made just a few steps outside the courtroom where the proceedings were being conducted, and with his unrelenting media posts attacking those he perceived to be responsible for his plight.”
Trump went on to repurpose the arguments about his inability to get a fair trial in Manhattan in a bevy of motions, all of which were denied. Yesterday, just in time for closing arguments, the First Department panel issued a three-sentence order affirming the ruling of the single judge who denied Trump the adjournment six weeks ago after an emergency hearing.
But the second order ran to four pages — a tome by the standards of the First Department! Perhaps this was because Trump’s “Article 78 Petition on Order to Show Cause relating to rulings exceeding Justice Merchan’s jurisdiction under state law and the U.S. Constitution” was functionally an omnibus protest of every pretrial ruling in the case. Trump was pissed about the judge’s instruction to stop spamming the docket with garbage motions; and the court’s refusal to exclude his tweets as “official acts” protected under the doctrine of presidential immunity; and most of all, Justice Merchan’s refusal to recuse himself because his daughter runs a Democratic political comms firm.
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“The unconstitutional effects of Justice Merchan’s rulings are causing ongoing, irreparable constitutional harms to Petitioner and the voting public, and if not stopped, will prevent the Petitioner from receiving a fair trial,” he wrote in his emergency petition.
The First Department rubbished these claims, noting that the trial court possesses “general discretion to manage its docket in the interest of judicial economy,” and claims that it abused its discretion may be taken up on direct appeal.
The panel noted that Trump had filed multiple motions demanding Justice Merchan’s recusal, one of which came too late, and is thus time-barred, and one which preceded the judge’s second denial, and was “not ripe at the time of filing.”
“[E]ven if petitioner had established that the court exceeded its jurisdiction in issuing one of these orders, the extraordinary remedy of prohibition is not granted as of right, but only in the court’s sound discretion,” the court concluded. “Exercise of such discretion would not be warranted in this case, where relief would interfere with the normal trial and appellate procedures, and, without opining on the merits, the matters herein identified by petitioner may be raised in a direct appeal.”
Good luck next week with the jury, they did not add. But we will!
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Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
