"Trump is running scared": Legal experts slam "harebrained" scheme to get NY judge to recuse

The New York judge overseeing Donald Trump's upcoming hush-money trial expanded the gag order on the former president on Monday to protect his and the Manhattan District attorney's family members, following Trump's week of attacks of the judge's daughter. Trump's team is now planning to use the judge's move as grounds to demand a recusal. 

The latest order came almost a week after Judge Juan Merchan granted the district attorney's request for a gag order on the presumptive GOP nominee barring him from attacking witnesses, jurors, the prosecution and court staff as well as their families. The previous order did not cover Merchan or District Attorney Alvin Bragg, who brought the case related to a hush-money payment made to conceal a sex scandal ahead of the 2016 election. 

In his new order, the judge cited the former president's recent online barrage of his daughter to explain his decision to amend the gag order, which still does not prohibit Trump from assailing the judge or Bragg.

“This pattern of attacking family members of presiding jurists and attorneys assigned to his cases serves no legitimate purpose,” Merchan wrote, and rejected Trump's argument that his statements constituted "core political speech." Instead, the judge argued. “It merely injects fear in those assigned or called to participate in the proceedings, that not only they, but their family members as well, are ‘fair game’ for defendant’s vitriol.”

The judge's Monday ruling indicates that Trump had "finally" gone "too far" in his attacks, giving Judge Merchan "the record he needed" to expand the gag order, Loyola Law School professor Laurie Levenson told Salon.

The initial gag order was also "far too limited," added Bennett Gershman, a Pace University law professor and former New York prosecutor, who noted that while the "current escalation" of Trump's "violent rhetoric" directed at the courts, prosecutors and their relatives is "astounding," it's also "understandable."

"Trump is running scared," Gershman told Salon. "He faces four major criminal trials that threaten his liberty, just as the last two recent civil trials inflicted a huge cost on him."

But the "threats of harm" that could be perceived from Trump's social media posts "are not protected speech and never have been," Gershman explained, highlighting a clip Trump posted last week that included a violent image of President Joe Biden. "Trump’s ugly rhetoric and implicit if not explicit threats of violence not only keeps him in the headlines but stokes violence by his followers," Gersham argued. Because Trump has made such "unconstrained" language, which is "wildly cheered" by his base, a "prominent feature of his political persona," as Adolf Hitler and Benito Mussolini had, Gershman added, it's "possible that no gag order will be sufficiently tailored to stop him." 

Last week, Bragg's office urged the judge to clarify that their families were covered by the gag order, arguing that that protection is "amply warranted." Bragg's office also warned of “the harms that those family members have suffered" given Trump's history of making "threatening and alarming remarks."

Trump's slew of attacks of Merchan's daughter on social media last week made the judge's decision more complicated. Shortly after imposing the initial gag order, Trump unloaded on Merchan and his daughter, Loren Merchan, a political consultant whose firm has worked with Democratic candidates, including President Joe Biden, in a series of escalating posts to Truth Social.

Despite the order's expansion, Gershman expects Trump will continue to "escalate" his "violent" posts and choose a different person to "threaten and bully" in order to obtain the "headlines he craves" and rally his supporters.

Levenson believes that while Trump may keep "pushing the envelope," he'll "think twice" before further attacking the judge's daughter, doing instead what he has been: arguing that the orders are "unfair." She noted that the latest order is focused on "how Trump's attacks increasingly threatened the integrity of the trial" also makes it "less likely" an appeal would succeed should Trump seek one. 

The presumptive Republican nominee trial in the case is set to start on April 15. He faces 34 felony counts of falsifying business records and denies committing any wrong doing, claiming his prosecution amounts to election interference and decrying the gag order as "unconstitutional."

“I just was informed that another corrupt New York Judge, Juan Merchan, GAGGED me so that I can not talk about the corruption and conflicts taking place in his courtroom with respect to a case that everyone, including the D.A., felt should never have been brought,” Trump wrote Tuesday in a post on Truth Social. “They can talk about me, but I can’t talk about them???"

He continued: “That sounds fair, doesn’t it? This Judge should be recused, and the case should be thrown out," adding, “There has virtually never been a more conflicted judge than this one. ELECTION INTERFERENCE at its worst!”

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In a late Monday opposition brief refuting the district attorney's order-expansion grounds, the former president indicated he plans to file a second motion seeking to recuse Judge Merchan from the case, Law and Crime reports. Trump's social media posts about Loren Merchan, his attorneys argue, "amplified defense arguments regarding the need for recusal” and addressed "specific political opponents" that her firm worked with. 

The recusal bid is a reprise of a similar effort Trump undertook against Judge Merchan last June over his daughter's career. In May 2023, a New York court ethics panel found that Judge Merchan's “impartiality cannot reasonably be questioned” because of his daughter's “business and/or political activities” nor was he "ethically required to disclose them.” Judge Merchan later issued a ruling that August declining to recuse himself. 

While Trump's attorneys can argue in court filings about the relevance of Loren Merchan's work to a recusal motion, there's "no need" for Trump to post about her on social media, Levenson said. 

Gershman and Levenson also agreed that Trump's latest bid to recuse Judge Merchan lacks merit. The effort, Gershman explained, is "baseless" because it's "too broad" and "involves speculation and irresponsible insinuation" that the judge's relationship with his daughter would predispose him to rule based on that relationship.

If "one looked closely at the background of any judge in America, at his or her family and their acquaintances, and his or her affiliations, then every Justice on the US Supreme Court, and probably every sitting judge in America, would have to be disqualified from sitting," he said.

"Once again, his legal team continues to make frivolous and even harebrained claims in an effort to delay Trump’s legal reckoning," Gershman added, predicting the bid "clearly won't be successful" in court but will keep "the Trump pot boiling with the rhetoric of resentment and indignation at the legal system and the mountain of criminal charges against him."