Legal experts say Donald Trump’s remark urging the public to “look where” the judge in his Manhattan criminal trial “comes from” is the latest instance of the former president working to delegitimize the judiciary while relying on the specter of racism and xenophobia.
As he left the Manhattan courthouse Tuesday, Trump told reporters that Judge Juan Merchan "hates" him.
“Just take a look,” Trump said. “Take a look at him. Take a look at where he comes from. He can’t stand Donald Trump. He’s doing everything in his power.”
Stephen Burbank, emeritus professor of law at the University of Pennsylvania, said Trump’s comments are reflective of his tactic of trying to inflame his base and the wider public with "racism" and "phobia."
“‘Take a look at where he comes from’ of course raises again the specter of racism, phobia, a phobia about people of Hispanic origins,” Burbank said. “Simply by the name of a judge it appears he assumed that he would be anti-Trump.”
“He’s doing everything in his power to provide a fair trial to Mr. Trump,” Burbank said. “It’s really quite repulsive, in my view.”
Merchan, who was born in Colombia and immigrated to the U.S. at the age of six, is presiding over Trump’s criminal trial, where he faces a potential four-year prison sentence if found guilty of 34 felony counts of falsification of business records.
Charles Geyh, a professor at the Indiana University Maurer School of Law, said Trump’s comments on the judge are aimed at urging his supporters to believe the prosecution is political and sowing distrust in the American justice system.
“What he's doing here is, in effect, trying to discredit the court as a way to maintain his constituency and preserve their confidence in him by by discrediting the court,” Geyh said. “If and when he loses his case, he can blame the judge, blame the court proceeding, blame the state judiciary, blame the administration of justice that has fallen into liberal hands and so on. That's what I think is going on here, certainly. The business of trying to delegitimize every judiciary, or every court that has his ruling against him is a pattern that we've seen in prior cases.”
Russell Wheeler, a non-resident senior fellow in governance studies at the Brookings Institution, said Trump has a history of criticizing judges he views as unfair.
“These statements are nothing more than Trump’s fabricated rantings about any judge who makes any ruling that displeases him,” Wheeler said. “He's kept up to the present day, unmoored from reality and with no concern about the threats of violence that they provoke.”
Geyh said Trump’s statements about Merchan are a “carbon copy” of comments he made in 2016 about Judge Gonzalo Curiel’s Mexican background.
During a civil fraud case against Trump University in 2016, then-candidate Trump called Curiel a "hater" because he was "Hispanic" and "Mexican."
Trump maintained in interviews that because of Curiel’s ancestry, he was biased against him for wanting to build a border wall. Curiel was born in Indiana, went to law school at Indiana University, and, like Merchan, is an American citizen.
Geyh said he thought there was an argument for Trump to be cited for contempt in the Trump University case: “Because I think of that disrespect for the court’s order and rulings, and that fundamental impartiality was at stake.”
Then-House Speaker Paul Ryan, R-Wis., at the time disavowed Trump’s comments, which he called “the textbook definition of a racist comment.”
Ryan said he still supported then-nominee Trump.
Almost eight years later, Trump has yet to receive public pushback from top Republican allies.
Salon reached out to current House Speaker Mike Johnson, R-La., but his office did not respond to that emailed request for comment by Wednesday afternoon. Trump’s campaign also did not respond to an emailed request for comment.
In 2016, Trump issued a statement saying: "I do not feel that one’s heritage makes them incapable of being impartial, but based on the rulings that I have received in the Trump University civil case, I feel justified in questioning whether I am receiving a fair trial."
Trump has a gag order limiting what he can say about his Manhattan trial – but it does not include comments about Merchan.
“The gag order was very carefully crafted to protect the people who don't have a power to protect themselves,” Burbank said. “Judge Merchan obviously doesn't suffer from the extraordinary insecurity of Mr. Trump. Which is one of the reasons why, but not probably the most important reason why, he didn't include himself in that gag order. He doesn't have any problem taking care of himself.”
Merchan did expand the gag order to bar Trump from making statements about family members of the judge and prosecutors.
He referenced the chilling effect on the criminal case — as prosecutors' called Trump's language "dangerous" and "violent."
Merchan said that Trump's "pattern of attacking family members of presiding jurists and attorneys assigned to his cases serves no legitimate purpose. It merely injects fear in those assigned or called to participate in the proceedings, that not only they, but their family members as well, are 'fair game' for Defendant's vitriol. It is no longer just a mere possibility or a reasonable likelihood that there exists a threat to the integrity of the judicial proceedings. The threat is very real."
That came after Trump falsely claimed that Merchan’s daughter, Loren Merchan, used an image of him behind bars as a profile picture on X. But a court spokesperson said that X account had not belonged to Merchan since she deleted her handle a year earlier.
Burbank noted that Trump is now “evading” the gag order by having his surrogates stand outside the courthouse levying claims about witnesses, jurors and Judge Merchan’s daughter.
HuffPost reporter Andrew Rice said on MSNBC that he saw Trump editing statements for his Republican allies to say.
The gag order also bars Trump from directing others to say statements.
“Judge Merchan could have initiated an inquiry into whether that violated the gag rule or namely, if Trump was responsible for violations of the gag order,” Burbank said. “That would be a circus. And that's just what Trump wants. He wants chaos… The way Judge Merchan has run these proceedings is he's just not going to allow it to be turned into a circus.”
Trump has so far paid $10,000 in fines for contempt in his Manhattan trial – and was fined thousands for violating a gag order in his civil fraud trial.
Geyh said that Merchan is in a tough place when it comes to enforcing the gag order against a presidential candidate.
Judges traditionally take “steps necessary to preserve the integrity of their proceedings and respect for the solemnity of their proceedings, and for the perception of traditional impartiality that they're struggling to preserve," he said. “Letting him go and do what he's doing erodes that respect for the court. But if they go ahead and cite him and pursue a contempt kind of route, they will simply create other problems. In other words, it will exacerbate the feelings of a large segment of the public that the people are out to get the president and that this isn't a fair proceeding. And so it really does underscore just how tense and intractable the situation is.”
Geyh said that Trump’s recurring complaint that judges from another political party could never give him a fair shake are highly troubling – and not enough to get any judge disqualified in the U.S. judicial system.
“The idea that no person with a Democratic background could rule on a Republican litigant or no Republican judge could rule on a Democratic litigant would be impossible,” Geyh said.
And he said Trump’s comments are reflective of a common tactic by individuals fearing a loss in court.
“This does happen in some cases, where a litigant reaches the point of concluding that he's basically losing on the merits,” Geyh said. “And so he starts saying things about the judge in order to basically claim now 'the judge doesn't like me, because of the things I've said.' In other words, you insult the judge, bait the judge, anger the judge. And then when it works, you basically say, ‘See, the judge is biased against me, because of the stuff I've said.’”
