Case 9:23-cr-80101-AMC Document 566 Entered on FLSD Docket 05/21/2024 Page 19 of 28
aggressive position in the opening submission, they agreed to “seek[] only Per. 18’s fact work
product.” Id.
Following a March 9, 2023, hearing attended by the Special Counsel’s Office and counsel
for President Trump and Per. 18, Judge Howell granted, in part, and denied, in part, the motion.
Ex. 17. The court ordered Per. 18 to produce documents “reflecting his efforts to comply” with
the Trump Office Subpoena, and that “may have informed his knowledge” of the Trump
Organization Subpoena. Judge Howell also required Per. 18 to produce the May 2022
Recording and the June 2022 Recording, based on reasoning set forth in separate orders. Exs. 18,
19. On March 22, 2023, the D.C. Circuit denied motions by President Trump and Per. 18 to stay
Judge Howell’s rulings. See Order, In re Sealed Case, Nos. 23-3035, 23-3036 (D.C. Cir. Mar. 22,
2023).
7. The Compelled Testimony
On March 24, 2023, the Special Counsel’s Office required Per. 18 and to testify
before a grand jury in the District of Columbia—despite the lack of venue for any of the offenses
under consideration. The prosecutors questioned Per. 18 extensively regarding, inter alia, the
otherwise-privileged communications with President Trump, the May 2022 Recording, and the
June 2022 Recording.
B. Applicable Law
1. Attorney-Client Privilege And Work Product
“Traditionally, the attorney-client privilege, like the privilege extending to attorney work
product, is sacrosanct.” United States v. Stein, 2023 WL 2585033, at *2 (S.D. Fla. 2023) (cleaned
up). “The attorney-client privilege attaches, of course, to confidential communications between
an attorney and client for the purposes of securing legal advice or assistance.” Drummond Co.,
17

House Republican Conference Chair Elise Stefanik filed an ethics complaint against Judge Juan Merchan for an alleged conflict of interest pertaining to his daughter’s role at a firm known for representing Democratic politicians.

Merchan, an acting Supreme Court justice in New York, is presiding over the unprecedented criminal trial against former President Trump stemming from charges brought by Manhattan District Attorney Alvin Bragg.

Stefanik, R-N.Y., filed the complaint with the New York State Commission on Judiciary Conduct, warning that Trump, who pleaded not guilty to all 34 counts of falsifying business records, faces “a maximum of 136 years’ imprisonment” if convicted, and said not only are his “interests at stake,” but “the interests of all Americans are at stake.” 

She pointed to Merchan’s daughter, who serves as the president of Authentic Campaigns — a group that represents Democrat politicians and political action committees. 

NY V TRUMP: JUDGE TO CONSIDER DEFENSE MOTION TO DISMISS AFTER PROSECUTION RESTS CASE

Stefanik highlighted how her clients, like Rep. Adam Schiff, D-Calif., have fundraised off of Trump’s indictment and criminal trial. Trump himself has requested Merchan recuse himself from the trial due to his daughter’s work. Merchan said there was no reason for him to do so.

Stefanik added that she learned that the New York State Commission on Judiciary Conduct “privately cautioned him in July over his illegal political donations to Biden and Democrats in 2020.”

“This private caution has not deterred Judge Merchan’s judicial misconduct, as evidenced by this current complaint,” she wrote. “Judge Merchan appears driven by Democrat partisanship and financial gain for his daughter.”

Stefanik said it is “imperative that New Yorkers and all Americans have confidence that justice is being dispensed fairly in New York.”

NY V TRUMP: JUDGE TO CONSIDER DEFENSE MOTION TO DISMISS AFTER PROSECUTION RESTS CASE

“This is especially true in politically sensitive cases where bias is most likely to rear its ugly head. Here, we are in the middle of a presidential election campaign. The circumstances are unprecedented: President Trump, a former president and the likely nominee of a major party for the presidency, is on trial,” Stefanik wrote. “These proceedings are under a microscope.”

On Tuesday, defense attorneys for Trump rested their case without calling former President Trump to the stand to testify. They called two witnesses — paralegal Daniel Sitko and a former legal adviser to Michael Cohen, Robert Costello — before resting their case. Prosecutors rested their case on Monday. 

Prosecutor Matthew Colangelo makes opening statements as former President Donald Trump watches with his attorney Todd Blanche before Justice Juan Merchan during Trump’s criminal trial on charges that he falsified business records to conceal money paid to silence porn star Stormy Daniels in 2016, in Manhattan state court in New York City, April 22, 2024, in this courtroom sketch. (REUTERS/Jane Rosenberg)

Merchan dismissed the jury until after Memorial Day. 

Stefanik argued that the judge’s “clear conflict of interest, based upon his adult daughter’s financial state in this unprecedented criminal trial, has badly damaged the court’s appearance of impartiality.”

TRUMP SLAMS NY COURT SYSTEM, BOASTS HE’S GOING ‘TO WIN’ EMPIRE STATE

“Given Judge Merchan’s daughter’s clientele — and the vast sums of money that these individuals have raised and will continue to raise off of President Trump’s charges — Judge Merchan’s daughter stands to benefit the more legally imperiled President Trump is,” Stefanik said. “She is well within the sixth degree of relation to Judge Merchan; indeed, as his daughter, she falls within the first degree.”

She added: “A straightforward application of Section 100.3(e)(1)(D)(iii) requires recusal. As Judge Merchan has declined to do so, I request that you investigate his conduct and impose whatever discipline is required.”

Justice Samuel A. Alito Jr., the Supreme Court’s most predictable conservative of late, is again battling complaints that some of his actions demand that he recuse himself from pending cases.

Alito has responded that he is a victim of unjust criticism.

Here’s a look at some of the recent controversies.

What is the upside-down flag incident about?

Last week, the New York Times published a photo showing an American flag flying upside down in front of Alito’s house on Jan. 17, 2021.

Neighbors reported seeing the flag flying for several days after supporters of outgoing President Trump had rioted at the U.S. Capitol.

For some, the upside-down flag became a symbol of the “Stop the Steal” movement.

How did Alito respond to complaints about the flag incident?

He blamed his wife, Martha-Ann, and his neighbors.

“I had no involvement whatsoever in the flying of the flag,” he told the New York Times in an email.

Speaking to a Fox News reporter, he said a neighbor had made vulgar comments to his wife.

Alito suggested it was unfair to criticize him for the upside-down flag because it was his wife’s idea and she had been provoked by neighbors.

He did not explain whether he was troubled by this display of the flag or why he did not insist immediately that it must come down.

Some liberal groups have demanded that Alito recuse himself from proceedings involving Trump. But there is no hint Alito will step aside from deciding the pending case on whether Trump can be prosecuted for “official acts” he took as president.

Are these the first calls for Alito to recuse himself?

No. Last year, Alito gave an interview to the Wall Street Journal complaining about the treatment of Supreme Court justices.

“We’re being hammered daily. And nobody, practically nobody is defending us,” he told two opinion page writers of the Wall Street Journal, which regularly defends Alito and the conservative court. “We are being bombarded. … This type of concerted attack on the court and individual justices” is “new during my lifetime.”

One of the writers, Washington attorney David B. Rivkin, had helped write an appeal petition asking the court to take up a major tax case and rule the Constitution forbids levies on undistributed corporate profits.

Two months later, when the court voted to hear the case, Senate Democrats and progressive groups called for Alito to step aside from ruling on the matter.

The justice fired off a sharp rejoinder. There is “no valid reason for my recusal in this case. When Mr. Rivkin participated in the interviews and co-authored the articles, he did so as a journalist, not an advocate. The case in which he is involved was never mentioned.”

The court is due to issue a decision in that case, Moore vs. United States, in the next few weeks.

How did Alito respond to complaints that some justices failed to disclose free trips?

Alito was upset last summer when he learned ProPublica was about to publish a story on a free fishing trip he took to Alaska in a private jet owned by hedge fund billionaire Paul Singer.

The nonprofit investigative group had earlier revealed that Justice Clarence Thomas had regularly taken free and undisclosed vacations with Texas billionaire Harlan Crow.

Like Thomas, Alito did not mention the luxury trip in 2008 as a gift on the required judicial disclosure report.

When ProPublica sent him several questions about the upcoming story, Alito refused to comment through a court spokeswoman and then sought to debunk the “false charges” in the Journal before the story could appear.

What he described as false charges involved whether he knew or should have known that Singer’s hedge fund was involved in appeals before the high court.

Singer’s hedge fund, NML Capital, had pursued an aggressive strategy of buying Argentina’s bonds at a discount when the country defaulted in 2001 and then fought in the U.S. courts to be paid in full. This 14-year battle between what the Argentines called the “vultures” and Singer’s hedge fund was featured often in the legal and financial press, including the Wall Street Journal.

Singer is a major Republican donor and gave Alito glowing introductions when he spoke to the Federalist Society and the Manhattan Institute.

ProPublica said Singer’s hedge fund was involved in 10 appeals that came before the court. In 2014, the justices agreed to decide a key issue and ruled 7 to 1 in favor of Singer’s hedge fund with Alito in the majority. Singer’s hedge fund was ultimately paid $2.4 billion for its bonds.

Writing in the Journal, Alito said he had no duty to recuse himself from ruling in the case because “I was not aware and had no good reason to be aware that Mr. Singer had an interest” in the cases involving Argentine bonds. When the court agreed to decide the case of “Republic of Argentina vs. NML Capital, Ltd., No. 12-842, Mr. Singer’s name did not appear” in the legal briefs, he said.

Yes, “he introduced me before I gave a speech — as have dozens of other people. … On no occasion have we discussed the activities of his businesses, and we have never talked about any case or issue before the Court,” Alito wrote.