Trump V Merchan (2024-02369)

Supreme Court of the State of New York
Appellate Division, First Judicial Department

Singh, J.P., Kennedy, Rodriguez, Pitt-Burke, Michael, JJ.
2382 & In the Matter of DONALD J. TRUMP, Ind. No. 71543/23

M-2024- Petitioner, Case No. 2024-02369
01976
-against-
THE HONORABLE JUAN M. MERCHAN etc., et al.,

Respondents.
________
CONSTITUTIONAL SCHOLARS, ETHICS EXPERTS,

and FORMER PUBLIC OFFICIALS; DONALD AYER,
TY COBB, TOM COLEMAN, BRIAN FROSH, STEPHEN
GILLERS, BARBARA S. GILLERS, PHILIP LACOVARA,
FREDERICK LAWRENCE, JOHN MCKAY, ALAN
CHARLES RAUL, NICHOLAS ROSTOW, CLAUDINE
SCHNEIDER, LAURENCE H. TRIBE, OLIVIA TROYE,
STANLEY TWARDY, SHAN WU, and ELLEN
YAROSHEFSKY,
Amici Curiae.
Blanche Law PLLC, New York (Todd Blanche of counsel), for petitioner.
David Nocenti, Office of Court Administration, New York (Lisa Evans of counsel), for
Juan M. Merchan, respondent.
Alvin L. Bragg, Jr., District Attorney, New York (Philip V. Tisne of counsel), for Alvin L.
Bragg, Jr., respondent.
Kaplan Hecker & Fink LLP, New York (Joseph Posimato of counsel), and Kaplan Hecker
& Fink, Washington DC (Joshua Matz of counsel), for amici curiae.
Petition pursuant to CPLR 7803 challenging the orders of Supreme Court, New
York County (Juan M. Merchan, J.), entered March 26, 2024 (the Original Restraining
Order) and amended on or about April 1, 2024 (the Amended Restraining Order, and
together with the Original Restraining Order, the Restraining Order), which, to the
extent challenged by petitioner, (1) prohibited him from responding to purported
“attacks” by two witnesses, Michael Cohen and Stephanie Clifford (a/k/a Stormy
Daniels), (2) limited his ability to make public statements about senior prosecutor
Matthew Colangelo, and (3) limited his ability to make public statements about Justice
Merchan’s daughter, unanimously denied, and the proceeding dismissed, without costs.
In this article 78 proceeding, petitioner asserts one cause of action for judgment
pursuant to CPLR 7803(2). This section is “a codification of the common-law writ of
prohibition, which is available to restrain an unwarranted assumption of jurisdiction
and to prevent a court from exceeding its powers” (Matter of Trump v Engoron, 222
AD3d 505, 505 [1st Dept 2023], appeal dismissed 40 NY3d 1090 [2024]; see LaRocca v
Lane, 37 NY2d 575, 578-579 [1975], cert denied 424 US 968 [1976]; Matter of Johnson
v Sackett, 109 AD3d 427, 428-429 [1st Dept 2013], lv denied 22 NY3d 857 [2013]). The
Court of Appeals has found that the “extraordinary remedy” of a writ of prohibition lies
only where a “clear legal right” to such relief exists – when a court “acts or threatens to
act either without jurisdiction or in excess of its authorized powers in a proceeding over
which it has jurisdiction” (Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). Even in
the rare circumstances where article 78 review will lie with respect to a writ of
prohibition, it “does not issue as of right, but only in the sound discretion of the court”
(Matter of Dondi v Jones, 40 NY2d 8, 13 [1976]).
We decline to exercise our discretion or to grant the relief that petitioner seeks
here. It is well established that “[a]lthough litigants do not surrender their First
Amendment Rights at the courthouse door, those rights may be subordinated to other
2
interests that arise in [the trial] setting” (United States v Trump, 88 F4th 990, 1007 [DC
Cir 2023] [internal quotation marks omitted] [the Federal Restraining Order Decision]).
In the Federal Restraining Order Decision, the circuit court weighed the three key
questions bearing on the entry of a restraining order against a criminal defendant: “(1)
whether the Order is justified by a sufficiently serious risk of prejudice to an ongoing
judicial proceeding; (2) whether less restrictive alternatives would adequately address
that risk; and (3) whether the Order is narrowly tailored, including whether the Order
effectively addresses the potential prejudice” (id.). The Federal Restraining Order is
nearly identical to the Restraining Order issued against petitioner in the underlying
criminal case (id. at 1028).
Petitioner brings this petition because he disagrees with where the circuit court
drew the line in balancing the competing considerations of his First Amendment rights
to free expression and the effective functioning of the judicial, prosecutorial and defense
processes (id. at 1027-1028, citing Landmark Communications v Virginia, 435 US 829
[1978]). Weighing these concerns, the circuit court ultimately concluded that, given the
record, the court had “a duty to act proactively to prevent the creation of an atmosphere
of fear or intimidation aimed at preventing trial participants and staff from performing
their functions within the trial process” (Trump, 88 F4th at 1014). This Court adopts the
reasoning in the circuit court’s Federal Restraining Order Decision.
The Federal Restraining Order Decision properly found that the order was
necessary under the circumstances, holding that “Trump’s documented pattern of
speech and its demonstrated real-time, real-world consequences pose a significant and
imminent threat to the functioning of the criminal trial process” (id. at 1012). First, the
circuit court concluded that petitioner’s directed statements at potential witnesses
3
concerning their participation in the criminal proceeding posed a significant and
imminent threat to their willingness to participate fully and candidly, and that courts
have a duty to shield witnesses from influences that could affect their testimony and
undermine the integrity of the trial process (id.; see also Sheppard v Maxwell, 384 US
333, 359 [1966]). Justice Merchan properly determined that petitioner’s public
statements posed a significant threat to the integrity of the testimony of witnesses and
potential witnesses in this case as well.
The constitutional objections that petitioner lodges against the Restraining
Order’s restrictions on his statements relating to Mr. Colangelo and Ms. Merchan are
unavailing. Notably, petitioner does not argue that the Restraining Order has impinged
upon his Sixth Amendment rights, or that he is unable to receive a fair trial because of
the Restraining Order. Instead, he argues that the restriction of his statements relating
to any real or perceived impropriety posed by Mr. Colangelo’s and Ms. Merchan’s
actions and employment history restrict his ability to engage in protected political
speech and may have some adverse impact on his campaign. We find that Justice
Merchan properly weighed petitioner’s First Amendment Rights against the court’s
historical commitment to ensuring the fair administration of justice in criminal cases,
4
and the right of persons related or tangentially related to the criminal proceedings from
being free from threats, intimidation, harassment, and harm.
M– 1976 Matter of Trump v The Honorable Juan M.

Merchan, et al.
Motion to file an amicus brief, granted.
THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: May 14, 2024

Trump V Merchan (2024-02369)

Uploaded by

Copyright:

Available Formats

Trump V Merchan (2024-02369)

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Trump V Merchan (2024-02369)

Uploaded by

Copyright:

Available Formats

Supreme Court of the State of New York

Appellate Division, First Judicial Department

2382 & In the Matter of DONALD J. TRUMP, Ind. No. 71543/23

THE HONORABLE JUAN M. MERCHAN etc., et al.,

CONSTITUTIONAL SCHOLARS, ETHICS EXPERTS,

extent challenged by petitioner, (1) prohibited him from responding to purported

pursuant to CPLR 7803(2). This section is “a codification of the common-law writ of

prohibition, which is available to restrain an unwarranted assumption of jurisdiction

(Matter of Dondi v Jones, 40 NY2d 8, 13 [1976]).

whether the Order is justified by a sufficiently serious risk of prejudice to an ongoing

criminal case (id. at 1028).

processes (id. at 1027-1028, citing Landmark Communications v Virginia, 435 US 829

reasoning in the circuit court’s Federal Restraining Order Decision.

necessary under the circumstances, holding that “Trump’s documented pattern of

circuit court concluded that petitioner’s directed statements at potential witnesses

potential witnesses in this case as well.

The constitutional objections that petitioner lodges against the Restraining

historical commitment to ensuring the fair administration of justice in criminal cases,

being free from threats, intimidation, harassment, and harm.

M– 1976 Matter of Trump v The Honorable Juan M.

Motion to file an amicus brief, granted.

THIS CONSTITUTES THE DECISION AND ORDER

ENTERED: May 14, 2024

You might also like