Many legal analysts who have evaluated the case have called it a disturbing aberration in how criminal law is applied and how criminal trials are conducted, and cited their favorite “most compelling” argument for Trump’s victory on appeal. In my case, I point to Marchan’s surprising decision to serve as justice in the first place.
It began in July 2023 when the New York State Commission on Judicial Conduct reprimanded and sent a “warning” to Judge Marchan for donating to President Biden’s reelection campaign and to the anti-Republican, anti-Trump political action committees Progressive Turnout Project and Stop Republicans. New York has a blanket ban on judges making such political contributions (see below), and while Marchan’s reprimand has not been made public (as reported by Reuters last month), it is likely to be much debated in the months leading up to the election.
Marchan donated $15 to the Biden campaign and $10 each to the two committees. Why would someone make such a symbolic statement if they have taken an oath to be a judge and adhere to the judicial ethics code? We cannot know, but it is quite likely that Marchan needed to plant the three flags to show the Biden campaign that he would be a good federal judge. Or maybe he just loves Biden. Or maybe Juan Marchan just hates Trump. We will never know, because the judge was not required to answer such questions.
“The warning does not include any penalties but may be considered in future cases reviewed by the state’s Commission on Judicial Conduct,” The New York Times reported in May. “The letter outlining the warning was not made public under commission rules, and Judge Marchan did not release the letter.”
Reuters reported: [the New York] The Commission’s rules state that a warning may be considered for future instances of misconduct.”
The New York State Commission on Judicial Ethics ruled last year that Judge Marchan did not have to resign after Trump’s legal team raised issues including his donations to Democratic organizations, his daughter’s Democratic activities and allegations that Marchan last year suggested a former Trump Organization executive help fight Trump in the company’s tax fraud case.
But the advice of the Commission on Judicial Ethics is not binding. Justice Marchan was free to resign, and should have done so. If Justice Marchan’s public support for opponents of the defendants on the bench did not disqualify him, let us hear no more (absurd) calls for Supreme Court Justice Samuel A. Alito Jr. to resign from January 6-related cases because some people disagree with his wife’s choice of flag to fly.
In a recent episode of the podcast “The McCarthy Report,” former federal prosecutor Andrew C. McCarthy and National Review editor Rich Lowry detailed 10 grounds on which Trump’s defense team could seek to have the sentence against Trump overturned. Sentencing (scheduled for July 11) requires a “provable” allegation of error, and Judge McCarthy opined that Marchan’s conduct amounted to “whitewashing” such a claim.
First, the Court of Appeals needs to reevaluate the significance of Marchand’s $35. Political contributions. The opinion of the Advisory Committee is not conclusive on the issue of recusal, nor is it a ruling by the First Circuit. The recusal rejection case will need to be considered in the context of the numerous rulings made by Marchan against Trump during the course of the trial.
Is there any question that outside of rabidly anti-Trump circles, Marchan has lost credibility because of his donation? It was Marchan’s first offense, and perhaps because the donation was small, he received a light punishment from the Commission on Judicial Conduct. That the judge was unaware of, or simply indifferent to, the allegations of wrongdoing arising from the donation was bolstered by an advisory committee that explicitly reprimanded the judge for the donation last summer. Marchan’s decision do not have It’s incomprehensible to decline.
Consider the following details from the rules governing judicial conduct in New York State:
Article 100, paragraph 2, states that “judges must avoid misconduct and suspicion of misconduct in all their activities.”
Article 100(4)(A) provides that “A judge must conduct all of his or her extrajudicial activities in a manner that is not likely to: (1) raise reasonable doubts about his or her ability to act impartially as a judge…”
Section 100.5(A)(1) provides that “sitting judges and candidates for judicial office shall not directly or indirectly engage in political activity, except (i) as otherwise authorized by this section or law, and (ii) to vote and indicate membership in a political party.”
Section 100.5(A)(1)(h) states: “New York judges may not make contributions to political organizations or candidates.”
Marchand is such an ardent supporter that even his robe can’t hide the team jersey with a big “D” on it that he’s wearing underneath.
