No, Trump Didn't Sue The Judge. But The Truth Is Only Marginally Less Stupid.

He'll probably try that one for real tomorrow.

Donald Trump’s criminal trial for creating false business records to cover up the hush money payment to Stormy Daniels is scheduled to begin Monday in New York, and his lawyers have been working overtime to try and stop it. Yesterday the New York Times was first to break the news of their latest gambit, but unfortunately the story obscured the reality of what’s going on here.

The paper of record described Trump filing “an unusual type of lawsuit against the judge overseeing the case, Juan M. Merchan.” In the reporters’ defense, the court has been disgraceful about ensuring public access to the documents here. But the Times’s imprecise language led other media outlets to follow suit, framing the story as if Trump’s wacky lawyers were suing the judge personally.

From someone who makes her living writing about Trump’s garbage lawsuits and snarking about his lawyers … WOULD THAT IT WERE SO! In reality, though, Trump’s motion is stupid and desperate, but also procedurally correct.

In fact, he filed two motions.

The first was an emergency petition to stay the trial pending resolution of his previously filed motion to transfer the case because of prejudicial pretrial publicity. Essentially, Trump, who made his fortune in Manhattan, now says he can’t get a fair hearing there and would like to be tried elsewhere. Perhaps in West Virginia!

The motion to change venue was filed with Justice Juan Merchan on March 18, just a week before Trump was originally scheduled to go to trial. (His lawyers bought three weeks of delay by erroneously accusing the prosecutors of discovery violations.) In the motion, Trump’s lawyers argued that it violates due process to try him in New York County because everyone there hates him, and also because Michael Cohen and Stormy Daniels said mean stuff about him on Twitter.

This was ridiculous, not least because Trump’s months-long public tantrum about this case has drawn a thousand times more media coverage than anything Cohen or Daniels have done in years. Only Trump would be shameless enough to liken himself to Nelson Mandela, call the judge a partisan hack, and then in the very next breath complain about negative pretrial publicity.

But more to the point, the time for such a motion has long since passed. The electorate hasn’t changed in the year since Trump was indicted, and, if he wanted to move the case to Staten Island or Schenectady, he needed to have asked a long time ago. If Justice Merchan hasn’t ruled on it yet, it’s because he’s been fielding the eleventy-seven other garbage motions Trump dumped on the docket in a bad faith effort to delay the case.

And yet, on Monday Trump moved on emergency basis to stay the trial pending the resolution of his original, doomed motion because “jury selection is scheduled to begin on Apr. 15, 2024, but polling and quantitative analysis of media coverage shows that a fair and impartial jury cannot be selected right now based on prejudicial pretrial publicity.”

Trump’s attorney Emil Bove argued that the Team Trump had commissioned a survey of residents, and 61 percent of the respondents believed that Trump was guilty, thanks to negative pre-trial publicity. But Steven Wu, appellate chief of the Manhattan District Attorney’s office, countered that Trump was “coming into this argument with unclean hands because the publicity is in large part his own.”

Associate Justice Lizbeth Gonzalez sided with the state, but, in the meantime, Trump’s legal brain trust had another trick up their bespoke sleeves. They filed a challenge to the gag order which was recently expanded to bar public attacks on the families of DA Alvin Bragg and Justice Merchan, not just witnesses, jurors, court staff, and the attorneys in the case. Because when you’re dealing with Trump, that’s a thing that has to be spelled out and backed up with the threat of contempt.

That filing is sealed as of this writing, but, because it challenges a collateral order of the court filed under New York’s Civil Practice Law and Rule Article 78, the case is captioned Trump v. Merchan. (Look, this is New York, where trial judges are called “Justices” and sit on a court denominated as “Supreme.” You kinda just have to roll with it.)

As former Assistant District Attorney Diana Florence pointed out to me, Trump filed just such a claim in the civil fraud trial when he sought to lift the gag that barred him from aiming his firehose of invective at Justice Arthur Engoron’s law clerk.

“Team Trump's 11th hour/eve of trial last-ditch attempts to delay and/or derail the trial smacks of desperation. And interestingly, it’s the exact same move they made before his civil fraud trial with a similar lack of success,” Florence said, noting that “they are not really suing the judge, as has been characterized in the media.”

In a rematch on Tuesday, Bove argued to Justice Cynthia Kern that Trump must be allowed to abuse Cohen and Daniels on Truth Social because they regularly attack him on Twitter. The attorney also mischaracterized the standard for gag orders, claiming that the order violates the First Amendment since prosecutors have not alleged that any of Trump’s statements “rise to the level of incitement.” As the DC Circuit affirmed in a ruling which formed the basis of Justice Merchan’s order, the actual standard for gag orders is whether the barred statements pose a “substantial likelihood of material prejudice” to the trial itself. Whether or not it rises to the level of incitement is irrelevant.

Wu countered by noting Trump’s “uncontested history of making inflammatory, denigrating comments,” calling it “a pattern of misconduct that causes predictable, terrifying consequences that the order here is intended to correct.”

With Trump v. Engoron, Trump won a brief stay, but the gag order was almost immediately reimposed after a court security officer submitted an affidavit describing the avalanche of threats and antisemitic abuse that rained down on the judge and his clerk when Trump blasted them on social media. Here, the former president didn’t even get that much. Perhaps it was because his reputation precedes him, or maybe it was because demanding the right to abuse witnesses is kind of a tough sell.

“Trump’s team brought a challenge to the judge’s ruling under CPLR Article 78, which requires the moving party to prove that the judge’s act was arbitrary and capricious, an extremely high standard,” she went on. “As long as Judge Merchan had a rational basis for the decision, in this case the gag order, the court cannot overturn his ruling.”

Trump has the right to seek review by a five-judge panel, and no doubt he will. That won’t happen before next week’s trial, although we’ll probably see five more emergency motions before that.

As is his wont, Trump spent the day attacking the judge and winkingly obeying the gag order by simply linking to articles repeating lies about his daughter, instead of typing them out himself.

Cry more, asshole.