Former President Donald Trump sits between his lawyers Christopher Kise, left, and Alina Habba during his civil fraud trial at the State Supreme Court building in New York, Wednesday, Oct. 4, 2023. (Angela Weiss/Pool Photo via AP). Inset: Judge Arthur Engoron presides over former President Donald Trump’s civil business fraud trial at New York Supreme Court, Wednesday, Oct. 25, 2023, in New York. (Spencer Platt/Pool Photo via AP)
Attorneys for former President Donald Trump reasserted on Monday that the gag orders issued by his New York civil fraud trial judge were “unconstitutional” and should remain stayed until a lawsuit against the presiding jurist is resolved.
Writing in the reply that Manhattan Supreme Court Justice Arthur Engoron abused his authority to silence protected speech and punish the same with sanctions, Trump’s attorneys accused the judge of “brazen” violations of the U.S. Constitution and New York’s Constitution.
“Petitioners moved for a stay of further enforcement of the Gag Orders in an attempt to redress Justice Engoron’s brazen and unmitigated violations of the United States Constitution, the New York State Constitution, the Judiciary Law, and the Rules of this Court,” the memo said. “The notion that an openly and overtly partisan individual would have any role in the decision-making process of this unprecedented case runs squarely counter to the foundational principles of American judicial independence and the Constitutional guarantee of a fair trial.”
The latest Trump filing was a response to two oppositions submitted last week on behalf of Engoron and New York Attorney General Letitia James (D). On Nov. 16, Trump sued Engoron and James under Article 78 in an effort to undo the jurist’s gag orders against both the former president and his lawyers.
Those high-profile orders barred the parties in the case from verbally attacking the judge’s court staff, especially Engoron’s Principal Law Clerk Allison Greenfield, and 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].”
The former president posted a photo of Greenfield on Truth Social in early October, referring to Engoron’s clerk as Democratic Sen. Chuck Schumer’s “girlfriend” and claiming that she was “running this case against me.” The judge responded to that post with a gag order.
Trump lawyers said, however, that it is the judge who has undermined the “rule of law.”
“In sum, the Gag Orders shield Justice Engoron and his openly partisan clerk from the precise scrutiny essential to maintaining public confidence in the judiciary and ensuring a fair trial,” Trump’s lawyers reiterated Monday. “Supreme Court has ignored with impunity clear, and troubling, evidence of partisan political bias and, in so doing, undermined, perhaps irreparably, the rule of law.”
Associate Justice David Friedman of the Appellate Division, First Department, citing the “constitutional and statutory rights at issue,” previously issued a temporary stay of Engoron’s gag orders and set Nov. 22 deadlines for Engoron and the state to submit oppositions. Monday, Nov. 27, was the deadline for the Trump team to file its reply.
While Trump wants the gag orders to remain stayed until the Article 78 suit is decided, the state wants the gag orders back in effect while the former president’s petition makes its way through court.
On Nov. 22, Lisa Evans, deputy counsel in Office of Court Administration and of counsel to Engoron’s lawyer David Nocenti, wrote that the gag orders were not issued on a whim, and that Trump and his team “have no likelihood of success on the merits.”
“[I]t is unquestionable that the conduct engaged in by Petitioners — the deluge of the court’s chambers phone and the law clerk’s personal cell phone, personal emails and social media accounts with hundreds of threatening, harassing, disparaging and antisemitic messages — which threatens the safety of court staff is the type of countervailing interest being served that warrants the imposition of the limited gag orders imposed by the Court,” the filing said. “The First Amendment does not prohibit courts from limiting speech that threatens the safety of the court’s staff. Courts have broad discretion to control the conduct of litigants and attorneys in ongoing proceedings.”
On the same day, senior assistant solicitor general Dennis Fan of AG James’ office, asserted that the gag orders were proper, and that Trump and his lawyers ignored “multiple warnings” not to disparage Engoron’s staff.
“The court issued its November 3 order, which prohibits the parties’ counsel from commenting on the principal law clerk’s communications with the court, after petitioners’ counsel refused to stop repeating unprofessional and vexatious arguments about the fact that the principal law clerk communicates with and advises the court — which is a significant part of her job,” the state opposition said. “Each of these orders properly imposed exceedingly limited restraints on speech to protect the safety of the court’s staff and preserve the orderly administration of the trial. Accordingly, petitioners’ free-speech arguments are meritless and the equities tip decisively against a stay.”
On Monday, Trump’s attorneys asked for the stay to remain in place pending the resolution of the petition, noting that Engoron on Nov. 17 denied the former president’s push for a mistrial.
“Justice Engoron has acted in excess of his jurisdiction in imposing and enforcing grossly overbroad restrictions on Petitioners’ speech and counsel’s advocacy during an ongoing trial in clear derogation of the freedom of speech guaranteed to Petitioners under the federal and state constitutions,” said the Trump memo in support of an interim stay, rejecting the state’s use of the term “vexatious” to describe the petitioner’s “expressed concerns.”
The lawyers said Trump has the right to object to “demonstrable partisan bias on the bench” without “fear of reprisal.”
“In essence, the Constitution does not permit Justice Engoron to curtail Petitioners’ speech simply because people may react to things that President Trump says,” the filing summarized.
While acknowledging that “overtly partisan” Engoron clerk Allison Greenfield was the target of “disturbing, derogatory, and indefensible comments and threats,” Trump’s attorneys said that “none of the contemptible dross reflected in those messages can be attributed to President Trump or his counsel.”
“Nor have President Trump or his counsel ever made a statement referencing the Principal Law Clerk’s religion, appearance, or private activities,” the memo continued. “Rather, the speech prohibited by the Gag Orders concerns the Principal Law Clerk’s public social media posts in furtherance of her judicial campaign and in support of Democratic candidates, groups, and platforms — partisan advocacy that continued during the pendency of this action.”
Read the Trump memo here.
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