After New York State Judge Juan Merchan fined and scolded Donald Trump earlier this month for violating a gag order in his criminal trial, the former president… Well, it may not be the best move, but it's definitely been a better move. After weeks of avoiding comments that could be construed as violating the order, he began testing boundaries again.
The order is intended to protect the sanctity of the case, including prohibiting President Trump from attacking witnesses, prosecutors, and the judge's family. But as Trump knows, Merchan himself is not protected under this order. After the defense closed its case outside court yesterday, he criticized Merchan, who was born in Colombia.
Trump hired third parties like Bob Dole to say, “Judges hate Donald Trump.” “Take a look. Take a look at him. Look where he came from. He can't stand Donald Trump. He is doing everything in his own power.”
This is not prohibited by the gag order, but it undermines the legitimacy of the court. It's also damning because Trump's actions too often and too casually risk being overlooked. Trump implies that Merchan should hate him because Merchan is Latino. Put differently, Trump is claiming that all Latino individuals are bound to dislike him because he has made racist comments about Latinos. (Never mind that Trump has courted and gained a base among Latino voters.) Or perhaps it's just another example of his frequent predictions. If Trump is biased, the assumption is that other people will be biased in the same way.
This is not the first time he has made such remarks about judges. In 2016, Trump alluded to the bias of federal judge Gonzalo Curiel, who was overseeing a class action lawsuit alleging the so-called Trump University was a fraud. (Trump eventually settled the case for $25 million.) “We believe the judge is Mexican. This is truly amazing. “I think that’s OK,” Trump said. When CNN reporter Jake Tapper pressed President Trump, he did not deny that he was saying the Mexican judge was unable to hear his case fairly.
Trump's comments about Murchan are more than just bigotry: they are an attack on the foundations of the American judicial system, part of an attack on the rule of law itself. The court's principles are that judges and juries do their best to eliminate bias, and that the checks and balances of an adversarial system ensure fair results. By arguing that he is irreparably prejudiced solely because of where he was born, Trump is trying to undermine the entire system. He also seeks to question the very concept of naturalized citizenship.
Trump's approach also creates perverse incentives. A defendant who attacks a judge (or prosecutor)'s race or other background can unilaterally remove him. Of course, every defendant would like to choose a judge who he expects will be reflexively sympathetic to him, but that's not fair. (Nevertheless, that may be exactly what's happening in another of Trump's criminal cases, as judges he appointed to federal courts appear to be interfering with his prosecution.)
There is a more charitable interpretation of Trump’s call to “look where he came from.” Merchan arrived in the United States at the age of six and settled in Queens, New York, the same borough as New York City where the former president was born and raised. Merchan, like Trump, is from Queens. If Trump means that New Yorkers don't like him very much, it makes sense.