{T} he political motivations in civil and criminal lawsuits driven by Democrats against Donald Trump are not credibly deniable. Inevitably then, some developments in these cases are unfair to him. Some developments, however, merely seem to be unfair because the former president and putative Republican 2024 nominee is fitting them into his campaign’s argument that his opponents have weaponized the judicial system against him.

In the latter category are claims that Trump and his lawyers waive — i.e., that they fail to raise until after any underlying issue has been resolved against him. Yesterday — three days after the end of the second jury-trial in the E. Jean Carroll lawsuits that have been going on for five years — just such a claim emerged: Trump’s lawyer in Carroll II, Alina Habba, filed a letter-brief with Judge Lewis Kaplan, suggesting that Kaplan should have recused himself because of his allegedly close personal ties to Carroll’s main lawyer and one of that lawyer’s assistants.

Imagine a baseball team that decides it will wait until the eleventh inning to start playing — under circumstances in which the game is anything but a tie. This stuff is reminiscent of Trump’s “stop the steal” campaign: His camp would routinely and publicly claim election fraud, then withdraw such claims when courts invited them to present their evidence, and then revive the claims publicly only after the cases were dismissed — bleating that they’d been denied an opportunity to prove them. Remember, too, Trump’s other claims of election-law irregularities, which were well-known prior to the election but not raised until after the election — and then raised only in states won by President Biden, even though similar conditions obtained in many states that Trump won.

This habit of withholding claims until after the time for raising them is long gone and then crying foul may make for good grievance politics, but it is terrible legal practice. It has been a staple of Trump’s approach to the E. Jean Carroll lawsuits.

As I’ve explained, I think that the $83.3 million awarded to Carroll by a jury in last week’s second trial is excessive, and that the court should have given Trump more latitude to mount a defense. On the other hand, Trump is as ever his own worst enemy: Despite being given every opportunity to do so, he foolishly opted not to participate in the first Carroll trial. Any competent lawyer would have warned him of the probability that defaulting in the first trial would mean he’d be barred from relitigating its key issues — sexual assault and defamation — in the second trial. As it happens, Trump had a very competent lawyer in the first trial, Joe Tacopina, who thereafter withdrew from further representing the “client from hell.” (Trump now implausibly maintains that his lawyers advised against his attendance at the first trial — notwithstanding that his failure to testify resulted in the jurors’ being given the standard, devastating instruction that they could draw a negative inference from his failure to testify or present a defense.)

Habba, who became Trump’s principal lawyer in Carroll II, is, to put it kindly, far less experienced than Tacopina and was overmatched. The letter she filed yesterday is principally aimed at the tie between Judge Kaplan and Carroll’s principal lawyer, Roberta Kaplan (no relation to the judge).

In representing Carroll, Roberta Kaplan was assisted by Shawn Crowley, a young partner in the law firm she founded in 2017, Kaplan Hecker & Fink. (Another partner, Mike Ferrara, also assisted, but his involvement does not bear on the recusal issue.) Kaplan and her firm have been in the case even longer than Judge Kaplan. (Back in 2019, while Trump was still president, Kaplan filed Carroll’s initial defamation lawsuit against him in New York state court. Trump’s Justice Department later removed the case to federal court — where it was randomly assigned to Judge Kaplan — in order to argue that Trump was immune from civil lawsuit. That argument eventually failed — such that the 2019 defamation claim was finally litigated in the second trial.)

For now, Habba’s letter is not a formal recusal motion. It seeks information from the judge about what Habba implies are his close ties to Roberta Kaplan, which Habba claims are relevant to a new trial motion the Trump team contemplates making (under Rule 59 of the Federal Rules of Civil Procedure). Nevertheless, the factual basis for any potential recusal motion has been open and notorious for years. The Trump team simply didn’t make such a motion until now — understandably so since there appears to be no basis for disqualifying the judge.

Roberta Kaplan, now in her late fifties, is a well-known lawyer and progressive political activist. For 24 years prior to founding her firm (i.e., from 1992 through 2016), she was at the large, prominent New York–based law firm of Paul, Weiss, Rifkind, Wharton & Garrison. As a young associate at the firm, she overlapped for less than two years with Lewis Kaplan, then a partner there. Lewis Kaplan left the firm in 1994, when President Bill Clinton appointed him to the federal bench (for the Southern District of New York in Manhattan). Kaplan, now 79, became a senior judge (i.e., took a reduced caseload) 13 years ago.

There is no secret about any of this; it is and has always been easily available public information.

Habba, however, claims that there is significant new information: The New York Post reported on Saturday that a Paul Weiss partner, whom the paper did not identify, said that “Lew” Kaplan was something of a “mentor” to the then-young associate Roberta Kaplan. Without a lot more, that is neither here nor there (despite Habba’s telling the Post, “It was never disclosed. It’s insane and so incestuous”). Nonetheless, Roberta Kaplan this morning filed a letter-brief forcefully rebutting Habba, denying that mentor–mentee relationship with the judge (their paths have occasionally crossed but they don’t know each other well, she reports), and accusing Habba of acting in bad faith. In any event, young associates who are trying to make partner at a big firm are often mentored by the partners, but a mentor–mentee relationship, even if one had existed 30 years ago, would not be remotely sufficient cause to disqualify a judge from presiding over a case in which the former “mentee” represents one of the parties.

Shawn Crowley is a younger, less well-known but well-credentialed lawyer. She certainly appears to have a closer personal relationship with the judge — but, again, one that was well known to the Trump team throughout the proceedings. A former federal prosecutor at the SDNY, Crowley has represented the Democratic National Committee, including in one instance when Trump unsuccessfully sued the DNC on claims of defamation and civil RICO. More relevant for present purposes, after graduating from Columbia Law School in 2011, she clerked for Judge Kaplan. When she got married, Judge Kaplan “co-officiated” at the ceremony, according to Habba’s January 29 letter (which cites a prior court filing that I have not seen).

None of this prompted a defense recusal motion based on personal ties to plaintiff’s counsel during the lengthy litigation. At one point last week, Habba’s partner, Michael Madaio, did move for Judge Kaplan’s recusal based on his alleged “general hostility” toward the defense. But this was right after Trump’s stage-whispering antics within earshot of the jury. Trump persisted in this inappropriate behavior after being admonished, which spurred a tense exchange between the former president and the judge. Kaplan promptly and justifiably denied the motion. Stern judicial reactions to a party’s provocations are common; they are not a basis for disqualifying the judge. Here, as Kaplan observed, Trump was patently baiting the court to order him excluded from further participation in the trial — which would have added grist to Trump’s political claim, in the 2024 campaign, that Democrats have weaponized the judicial system against him. (Kaplan threatened to exclude Trump, and once threatened to hold Habba in contempt — she appears to have been especially tendentious when Trump was in attendance — but he did not follow through.)

Judges have broad discretion regarding whether to recuse, and they should recuse when their impartiality may reasonably be questioned, as many do even when they don’t have to. (Of course, some don’t when they should, but that is rare.) Circumstances in which a judge must recuse rarely occur — essentially, recusal is required if a judge has a financial interest in the litigation, previously worked as a lawyer in the litigation, or is in the position of being a fact witness in the case. This case presented no such circumstances.

That’s the law. Then there is common sense: Timely recusal motions are often not made, even in situations when they could be (when it would be reasonable, even if not dispositive, to flag sources of potential bias), because no good lawyer wants to suggest that the judge is incapable of being fair unless the evidence is overwhelming — i.e., unless the evidence is so strong that the judge should obviously have taken it on himself to recuse. Lawyers who lose such motions — a very high probability — are stuck for the rest of the case with a judge whose integrity they have publicly questioned. Better to try to win the judge over with good performance than to invite the judge’s wrath.

Consequently, I don’t fault Alina Habba (much less Joe Tacopina) for failing to make what would have been a futile motion to recuse Judge Kaplan. Nor do I fault Trump for resenting, as he must, a double standard by which lawyers and their Democratic supporters who mount lawsuits against him are lauded as heroes in the media and the bar, while lawyers who represent him are publicly ridiculed and face ostracism at their firms, with some subjected to disbarment proceedings. It is reasonable to assume that this double standard may well predispose courts against Trump (although probably not as much as Trump’s habit of railing against judges in public statements and his lawyers’ demonstrable inability to prevent him from doing so).

But all that said, if the Trump defense was going to raise recusal, the time to do it was years ago, and certainly before the second Carroll trial. To do it now, long after the fact and with a woefully inadequate factual basis, is political exhibitionism, not legal argument.