Donald Trump filed a lawsuit against Judge Juan Merchan today after he issued a limited gag order earlier to prevent damaging judicial administration via witness and jury intimidation.

The Supreme Court of the United States ruled in Stump v. Sparkman in 1971 that:

  • A judge acting within the judicial function for the administration of law , is absoluty immune from all civil lawsuits for any actions he or she took while in that capacity, inclusive of the action being in bad faith or in error.

Given Judge Merchan's gag order was done in his official capacity as a judge to preserve judicial order, it would seem Trump's lawsuit is absolutely barred by the aforementioned precedent. Similarly, if Trump were to sue either Jack Smith or Fani Willis, Imbler v. Pachman and the extension of former' s holding via Van de Kamp v. Goldstein would bar Trump's lawsuit.


  • Is my understanding of the applicability of the above SCOTUS precedents to Trump's current lawsuit against Judge Merchan correct?

  • If yes, what other legal basis is Trump suing Judge Merchan?


1 Answer 1


Trump has filed an Article 78 proceeding in the New York's state courts according to the New York Times which broke the story. While this is a proceeding in the style of a lawsuit against the judge, it is functionally a form of appeal or common law writ, which does not seek money damages.

It is meritless. But it isn't within the scope of Stump v. Sparkman which restates the rule that judges are absolutely immune from civil lawsuits for money damages against them.

Article 78 of the Civil Practice Law and Rules starts with Section 7801 which explains that this is a statutory substitute for common law writ practice:

§ 7801. Nature of proceeding. Relief previously obtained by writs of certiorari to review, mandamus or prohibition shall be obtained in a proceeding under this article. Wherever in any statute reference is made to a writ or order of certiorari, mandamus or prohibition, such reference shall, so far as applicable, be deemed to refer to the proceeding authorized by this article. Except where otherwise provided by law, a proceeding under this article shall not be used to challenge a determination:

  1. which is not final or can be adequately reviewed by appeal to a court or to some other body or officer or where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner's application unless the determination to be reviewed was made upon a rehearing, or a rehearing has been denied, or the time within which the petitioner can procure a rehearing has elapsed; or

  2. which was made in a civil action or criminal matter unless it is an order summarily punishing a contempt committed in the presence of the court.

One of the multiple reasons that the lawsuit is meritless is that Article 78 proceedings don't apply to determinations made in criminal cases, except in cases where someone is summarily held in a punitive direct contempt of court finding for their in the courtroom misconduct (which Trump has not been, yet). It is usually used to appeal decisions in quasi-judicial administrative law and local government proceedings.

It is nothing more than a frivolous delay tactic, which may or may not work at even securing any delay of a criminal case, and a publicity stunt. Indeed, the lawyers filing this Article 78 proceeding face a serious risk of having their licenses suspended or being disbarred for their intentionally frivolous litigation conduct.

Claims Against Prosecutors

Prosecuting attorneys have absolute immunity from civil liability for money damages for their acts in connection with the criminal prosecution process in court (e.g. charging decisions and post-criminal complaint/indictment conduct). But prosecutors have only qualified immunity to the extent that they are participating directly in the investigative phase of a criminal prosecution (e.g., the issuance of search warrants and the conduct of interrogations).

Without knowing the nature of a hypothetical lawsuit, it is difficult to evaluate this issue.

  • 1
    Jdelay is Trump's middle name (the J is silent).
    – Barmar
    Commented Apr 8 at 22:39
  • Can you expand this answer to talk about Imbler and Van Der Kamp? It's my understanding Fani and Jack would be protected via these, no? Prosecutors acting in the judicial function within their jurisdiction are immune from civil suit, no?
    – Anthony
    Commented Apr 8 at 23:07
  • @Anthony I discussed it a little, but it is hard to reach many conclusions without more context.
    – ohwilleke
    Commented Apr 8 at 23:25
  • CNN discusses the matter with essentially the same analysis. cnn.com/videos/politics/2024/04/08/…
    – ohwilleke
    Commented Apr 10 at 1:56

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