In last-minute effort to delay trial, Trump filed an unusual lawsuit as an appeal against NY Judge Merchan

 April 11, 2024

Former President Donald Trump made three separate attempts this week to delay the start of his imminent "hush money" criminal case in New York, which is slated to begin on Monday, April 15.

One of those last-moment efforts came in the unusual form of a sealed lawsuit filed directly with the appellate division against presiding Judge Juan Merchan that doubles as an appeal of the gag order imposed on Trump and other recent decisions by the judge, according to the Washington Examiner.

The upcoming trial next week stems from Manhattan District Attorney Alvin Bragg's 34-count criminal indictment of Trump that charges him with felony falsification of business records in 2017 to cover up the alleged reimbursement of "hush money" payments made in 2016 to silence scandalous accusations of extramarital affairs ahead of that year's presidential election.

Trump's lawsuit against Merchan rejected by appellate judge

Unfortunately for former President Trump, NBC News reported on Wednesday that Associate Justice Ellen Gesmer of the Appellate Division rejected and denied the unusual lawsuit that sought to delay the start of the trial while Judge Merchan's recent orders were reviewed by the appeals court.

The outlet noted that Gesmer's rejection of Trump's lawsuit against Merchan represented the third appellate loss in three days for the former president, as two other appellate judges had denied on Monday and Tuesday two other more typical appeals that also sought to delay the start of the trial while Merchan's orders were reconsidered.

At issue in the trio of appeals was the gag order imposed on Trump, Merchan's rejection of presidential immunity as a defense argument, and Merchan's refusal to recuse himself over an alleged conflict of interest involving his progressive political activist daughter, who works for a Democrat-aligned consultancy firm.

"Everything about this case is a first"

NBC News reported that former President Trump's lawsuit against Judge Merchan, which doubled as an appeal, came in the form of what is known as Article 78 litigation, a New York law that allows suits to be filed against local and state government officials, including judges, over what are perceived to be unlawful actions and orders.

The New York Times reported that after Justice Gesmer rejected Trump's lawsuit against Merchan, the former president can further request that the entire five-judge appellate panel rehear it, though it is highly unlikely that that would occur before the trial begins on Monday.

Looking more broadly at Trump's three last-minute appeals, all of which were rejected in the past three days, The Times also pointed out that a dozen legal experts all took note of how rare and seemingly "unprecedented" the flurry of filings were, even as it was observed that Trump's attorneys could potentially submit additional filings on other unresolved matters in the coming days.

One of those experts contacted by The Times, former judge turned defense attorney Barry Kamins, acknowledged how unusual the situation was but stated, "I’ll ask you: Has a former president ever been prosecuted before? Everything about this case is a first."

Not Trump's first Article 78 lawsuit

As rare and unusual as Article 78 lawsuits might normally be, Law & Crime reported that former President Trump has utilized the infrequent recourse three times, and those efforts have failed each time.

In September 2023, Trump filed an Article 78 lawsuit against Judge Arthur Engoron to delay the beginning of his civil fraud trial, with the main complaint at that time being Engoron's refusal to acknowledge an appellate court's ruling that some of the fraud claims were dated beyond the state's statute of limitations.

Trump filed another Article 78 lawsuit against Engoron in November 2023 that challenged the gag order that judge had imposed to halt public criticism of his principle law clerk, who was accused by Trump and his attorneys of displaying bias against them and of improperly influencing the judge's actions and words.

In the end, barring some unexpected and increasingly unlikely intervention by the appellate court, Trump's New York "hush money" trial will commence in a Manhattan courtroom on Monday with Judge Merchan seated on the bench.

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