New York Supreme Court Justice Arthur Engoron, presiding over the civil fraud trial against President Donald Trump, responded in court filings on Dec. 6 to the former president’s accusation that he acted unlawfully.
President Trump’s legal team has begun an Article 78 proceeding against the justice, akin to a lawsuit against his actions.
In this case, Justice Engoron issued a gag order that the former president and his legal counsel are prohibited from making statements about, or communications with, his principal law clerk.
President Trump’s request to have the case heard on an expedited schedule was recently denied, meaning, even if the appeals court found the gag order should be reversed, the decision would come after the trial concludes on Dec. 12.
Defense attorneys are likely building a record to use to appeal the eventual final ruling.
In public and press comments, defense attorneys for President Trump have described the case as one with the cards stacked against them, highlighting the fact that the judge found President Trump liable for fraud a week before the trial began.
The trial only deals with how much President Trump should pay in damages.
An Article 78 proceeding is different from a standard appeal, which Justice Engoron argued was the correct course of action and grounds to dismiss the proceeding.
If the defense had done so, the motion would have been heard and ruled on by Justice Engoron himself, and certain to fail, but that decision could then still be appealed to the court now reviewing the Article 78 suit.
The defense is arguing that Justice Engoron overstepped his bounds in trying to limit President Trump’s First Amendment rights, including by gagging his lawyers so that they could not state on the record instances of what they believed to be bias against his client.
Justice Engoron argued that the attorneys are not parties, and did not list themselves as parties in the appeal, in the case and therefore have no standing to sue him.
He further pointed out that they made no protest when he first issued the gag order on Oct. 3, the same day President Trump made a social media post about the judge’s principal law clerk, and that the fines he issued were promptly paid.
‘Protecting’ Staff
In the court filing, Justice Engoron did not address the accusations of bias, as he was not required to. He instead insisted that there was no wrongdoing in a judge communicating with his staff.“It’s not clear—as a legal or factual matter—how confidential communications between Justice Engoron and his staff would create an appealable issue. The working relationship between a judge and his or her staff is sacrosanct,” the new filing reads.
He did not address accusations of his clerk’s bias either, though he had touched on it in his rejection of a mistrial motion previously.
Defense attorneys had said, in court, that principal law clerk Allison Greenfield was passing notes and whispering to the judge before several of the unfavorable rulings he made against the defense, and often rolled her eyes during their questioning of witnesses, whereas these things didn’t happen when state attorneys questioned witnesses.
They are now arguing that this alleged bias should be pointed out on the record, whereas Justice Engoron is arguing that his order is part of an effort to protect his staff from public harassment.
“To be clear, the Gag Order only prevents the parties from speaking [or posting or emailing] about Justice Engoron’s staff, nothing else,” he wrote.
He emphasized that he did not prevent statements about himself, his rulings, or anything else in the case, including allegations of his own biases.
“The Supplemental Gag Order is also extremely narrow in that it only prevents statements about communications between Justice Engoron and his staff, which by their nature are considered confidential communications.”
He said the First Amendment defenses should be looked at with “extreme skepticism,” arguing that his clerk was not a campaign topic and adding a claim that President Trump’s supporters have a propensity to show violence even if the former president doesn’t seek it.
“It is unclear, however, how his ability to talk about Justice Engoron’s court staff is necessary for his campaign when this country faces a number of issues more worthy of debate,” he wrote.
The argument that it is necessary to “protect court staff” has been taken up by federal judges evaluating a second order against President Trump.
He currently faces four separate criminal cases; in a federal case alleging he interfered with the 2020 elections, prosecutors originally sought a gag order to prevent social media attacks on them or the case by President Trump.
The judge ultimately issued a broad order with the rationale that the former president shouldn’t “target” individuals, pointing to the likelihood that his statements would draw unwanted attention to them, and therefore from the public.
Appeals court judges continued with this rationale, referencing the New York gag order and its supposed effectiveness in protecting court staff and people who are not public figures.
