Principal Law Clerk Allison Greenfield and Justice Arthur Engoron (Shannon Stapleton/Pool Photo via AP), Donald Trump on Dec. 12, 2020, in West Point, N.Y. (AP Photo/Andrew Harnik, File)
Days after his quest for a stay failed, Donald Trump wants New York’s top court to review his lawsuit against Manhattan Supreme Court Justice Arthur Engoron over gag orders the civil fraud trial judge issued against the former president and his lawyers.
Though the civil fraud trial is unfolding in Manhattan Supreme Court, which readers may confuse as the Empire State’s highest court, the actual top court in the state is the New York Court of Appeals.
Trump and his lawyers argued that the high court should hear his Article 78 lawsuit against Engoron before his civil fraud case ends, the former president’s Monday filing in the Supreme Court of New York, First Appellate Department revealed.
How we got here
Engoron issued a gag order in October barring Trump from verbally attacking the judge’s court staff after the former president posted untruthfully on Truth Social by calling the judge’s principal law clerk, Allison Greenfield, Democratic Sen. Chuck Schumer’s “girlfriend” and accusing her of “running the case against [him],” a shorthand way of alleging improper and politically motivated “co-judging.”
In November, Engoron prohibited Trump attorneys Christopher Kise, Clifford Robert, and Alina Habba from “making any public statements, in or out of court, that refer to any confidential communications, in any form, between [the judge’s] staff and [the judge].”
Engoron explained that the lawyers “made, on the record, repeated, inappropriate remarks about my Principal Law Clerk, falsely accusing her of bias against them and of improperly influencing the ongoing bench trial.”
“Defendants’ attorneys have made long speeches alleging that it is improper for a judge to consult with a law clerk during ongoing proceedings, and that the passing of notes from a judge to a law clerk, or vice-versa, constitutes an improper ‘appearance of impropriety’ in this case,” the judge wrote. “These arguments have no basis.”
Trump’s response
Trump reacted to the gag orders by filing a lawsuit under Article 78 against Engoron and New York Attorney General Letitia James (D), accusing the judge of committing “brazen” violations of both the U.S. Constitution and New York’s Constitution by abusing his authority to silence protected speech critical of the proceedings, shielding the “Principal Law Clerk’s ‘co-judging’ and partisan political activity from public scrutiny.”
Calling the gags “unconstitutional,” Trump initially sought an interim stay of the orders.
Associate Justice David Friedman of the Appellate Division, First Department, on Nov. 16, did issue a temporary stay of the gag orders, citing the “constitutional and statutory rights at issue.” But after reading the filings from Trump, the state, and an attorney weighing in on Engoron’s behalf, a panel of appellate justices lifted the temporary stay. Trump lawyers had asked for the gag orders to remain on ice pending the “resolution of their Verified Joint Article 78 Petition.”
After learning of the ruling, Engoron said, “I intend to enforce the gag orders rigorously and vigorously, and I want to make sure counsel inform their clients.”
Trump lawyer Christopher Kise, for his part, responded by saying it was “hard to believe this is happening in America.”
“In a country where the First Amendment is sacrosanct, President Trump may not even comment on why he thinks he cannot get a fair trial,” the attorney said.
A New York (Court of Appeals) state of mind
In documents filed Monday, Trump asked for “expedited leave” to take the case to the New York Court of Appeals and for an “expedited resolution” of the Article 78 petition.
“Petitioners respectfully request that this Court grant immediate leave to appeal from the November 30, 2023, order to the Court of Appeals,” wrote Trump lawyer Clifford Robert in an “Affirmation of Urgency.” “Expedited review by the Court of Appeals is vital to Petitioners’ rights and interests and necessary to redress Justice Engoron’s ongoing violations of the United States Constitution, the New York State Constitution, the Judiciary Law, and the Rules of this Court. ”
“As set forth more fully in Petitioners’ memorandum of law, the Gag Orders, which restrict both Petitioners’ and their counsel’s speech, impermissibly abrogate Petitioners’ First Amendment right to highlight serious concerns raised by the public and partisan activities of Justice Engoron’s Principal Law Clerk during an ongoing bench trial,” the filing continued. “The Supplemental Gag Order also prohibits Petitioners’ counsel from creating an appellate record of Justice Engoron and his Principal Law Clerk’s conduct on the bench each day of trial.”
The Trump team said the gagged lawyers and their client “will continue to suffer irreparable injury daily” if they remain “silenced on matters implicating the appearance of bias and impropriety on the bench during a trial of immense stakes” — and an “immediate review” by the top court is necessary to correct the “error” in time.
Leave for expedited review to the top court is warranted, Clifford Robert argued, because if that leave isn’t granted right away, the civil fraud trial and challenged gag orders likely will have ended and expired, respectively, before the issues can be redressed.
“This risks permitting a grave Constitutional deprivation to remain law of this State,” the filing said, asking that the appellate department, and preferably Associate Justice Friedman, to grant expedited review of the gag reinstatement — and soon.
UPDATE: On Monday afternoon, the appellate court rejected Trump’s request for expedited relief and set a Dec. 11 deadline for arguments to be filed by both sides as to whether the gag order should remain in place. Trump is scheduled to testify in his civil fraud trial that same day.
Read the latest Trump filing here.
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