Judge Merchan Loses His Temper

Although the New York courts have announced that they intend to post transcripts of the Trump trial "before the end of the following business day", this so far hasn't taken place, and the most recent transcript on the site is from Monday. Thus, at least so far, I'm having to rely on incomplete media accounts of the record. Here's the version of vesterday's blowup on Breitbart:

Merchan then asked Blanche to explain if Trump believed he was not violating the gag order when he reposted the Truths.

“I’d like to hear that,” Merchan exclaimed.

Blanche tried to explain, but Merchan said, “Blanche, you’re losing all credibility. I have to tell you right now, you’re losing all credibility with the court.”

There's a not fully helpful account of the proceedings in reverse chronological order on CNN. The exchange above appears to have taken place near the end of the hearing, close to the start of the day's trial at 11:00 AM. The specific issue, according to the CNN link, came up in relation to Trump reposting a comment by Jesse Waters:

Moving onto the post about the jury and Jesse Watters, Judge Juan Merchan asked: "Your client manipulated what was said and put it in quotes, am I right?"

"I wouldn’t use the word manipulation your honor," Donald Trump's lawyer Todd Blanche responded. "But the rest of the quote was not part of the quote."

Merchan said that Trump's post on the jury was not a repost.

"This is something that was said on TV and your client had to type it out. He had to sit there, use quotation marks, the shift key and type every thing out and then add those additional words," the judge said.

Blanche acknowledged that Trump's post about the jury was not a repost.

Judge Juan Merchan said he wants to hear an assertion under oath that Donald Trump believed he wasn't violating the gag order when he made the posts in question.

Merchan said: "How do I know that’s his position? Are you testifying under oath that that’s his position?"

"I'm not testifying, I'm making argument," attorney Todd Blanche replies.

"It's your client's position that when he reposts, he did not believe he was violating the gag order. I’d like to hear that. Or you just want me to accept it because you’re saying it?" Merchan says to Blanche.

This excerpt from Politico isn't covered in the CNN version, but it appears to be in the context of the same exchanges:

Prosecutors argued earlier that Trump's social media post calling Cohen and Daniels "sleaze bags" was a part of the former president's strategy to “condition” his followers.

Merchan also remarked that he would take into consideration the timing of Trump’s messages.

“You said the timing matters, why?” Blanche asked. “Why?”

Merchan responded sharply. “I’m asking the questions, OK?” he told Blanche.

Merchan warned Blanche that he was running out of time before the jury is expected to come back at 11 a.m.

Merchan's mention that they're running out of time is the one feature that caught my attention. Merchan scheduled this hearing to begin at 9:00 AM, to last until 11:00 AM, when the jury would arrive to start the day's abbreviated trial session. The hearing actually started around 9:20, and from what I can see in the CNN version, it spent over 90 minutes going round and round and accomplishing nothing -- Merchan said he wouldn't rule from the bench in any case, so we'll have to wait to see what he rules.

I note that the American Bar Association's statement on the Special Functions of the Trial Judge says in Standard 6-1.5. Obligation to use court time effectively and fairly:

(a) The trial judge has the obligation to avoid delays, continuances, and extended recesses, except for good cause. In the matter of punctuality, the observance of scheduled court hours, and the use of working time, the trial judge should be an exemplar for all other persons engaged in the criminal case. The judge should require punctuality and optimum use of working time from all such persons.

As best I can see, Judge Merchan wasted everyone's time in a rambling hearing in which he went round and round with Trump's attorney Blanche on questions like whether it's a violation of his gag order to repost someone else's opinion, and in the face of Blanche's argument that it was common sense that it wasn't, Merchan lost his temper and, in the media accounts, raised his voice. ABA Standard 6-1.4 says,

The trial judge's appearance, demeanor, and statements should reflect the dignity of the judicial office and enhance public confidence in the administration of justice.

This comment on courtroom etiquette from a working attorney explains the issue of how judges should address attorneys in court:

Judges often address attorneys by their last names, preceded by a courtesy title such as "Mr." or "Ms." This form of address is respectful and maintains a professional tone. For instance, "Mr. Smith, what is your argument regarding this motion?"

. . . Regardless of the specific term of address, judges typically maintain a respectful and professional tone when speaking to attorneys. This upholds the decorum of the court and the impartiality of the judiciary.

For Judge Merchan to addresss attorney Blanche as simply "Blanche" is outside normal courtroom decorum -- but in Trump's civil trial with Judge Engoron, the judge addressed Trump's attorney as "Chris" when he became impatient. This reflects badly on both judges.

The fact that yesterday's hearing ended only because it ran out of time suggests to me that Judge Merchan is simply over his head in this case, and it's confirmed by his losing his temper at Mr Blanche. So far, the case has been stumbling along with repeated recesses, when it would be even to the prosecution's advantage to move things quickly.

But we're also back to the Chicago Seven defense, which Alan Dershowitz, who helped develop it in the original Chicago Seven case, acknowledges the Trump defense has been using, particularly in the New York civil and criminal cases. The strategy is to get under the judge's skin and deliberately cause outbursts like Judge Merchan's yesterday. This in turn damages the court's credibility with the public.

Unlike Abbie Hoffman, Trump isn't wearing costumes or performing street theater in court, but he's doing precisely the things that will set the judge off. He posted before yesterday's hearing:

HIGHLY CONFLICTED, TO PUT IT MILDLY, JUDGE JUAN MERCHAN, HAS TAKEN AWAY MY CONSTITUTIONAL RIGHT TO FREE SPEECH. EVERYBODY IS ALLOWED TO TALK AND LIE ABOUT ME, BUT I AM NOT ALLOWED TO DEFEND MYSELF. THIS IS A KANGAROO COURT, AND THE JUDGE SHOULD RECUSE HIMSELF!

— Trump on 𝕏 (@trump_repost) April 23, 2024

This thing is going to collapse of its own weight -- and Trump is going to continue to bait Merchan to the point where Merchan will try to put him behind bars.