Gag Order Reveals Partisan Nature of Trial, Trump Attorneys Argue. "Enforced silence" will raise suspicion against, rather than enhance respect for, the court.
Gag Order Reveals Partisan Nature of Trial, Trump Attorneys Argue. "Enforced silence" will raise suspicion against, rather than enhance respect for, the court.

By Catherine Yang

Attorneys for former President Donald Trump in a civil fraud case against him in New York state filed a 1,902-page brief on Nov. 27 arguing that a gag order issued in the case should be lifted because of the judge’s allegedly unlawful conduct.

The lengthy document references a motion requesting a mistrial and the judge’s and state attorneys’ responses to it.

“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,” the new filing reads.

“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.”

New York Supreme Court Justice Arthur Engoron, presiding over the bench trial, which began on Oct. 2, had issued a gag order on Oct. 3 prohibiting the former president from speaking about the judge’s staff.

Trump attorneys have argued in court that the judge’s principal law clerk has an undue influence on the bench. In court filings, they elaborated that her previous campaign for a judicial position in Manhattan civil court gave them reason to believe that she was taking a partisan approach to the law.

President Trump has already been fined $15,000 for violating the gag order and has paid the fines.

Defense attorneys described the judge’s gag order as a “brazen and unmitigated violation” of the U.S. and New York constitutions, as well as rules governing the judiciary.

“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 memo reads.

Insinuations About Clerk

Justice Engoron had issued the gag order on the second day of the trial, after President Trump made a social media post including a photo of the judge’s principal law clerk, Allison Greenfield, at a political event with Sen. Chuck Schumer (D-N.Y.).

In the post, he made insinuations about the clerk’s relationship with the senator and accused her of being a partisan influence in the trial.

The post was deleted within 10 minutes after the judge asked President Trump to do so during a closed-door hearing, and the judge publicly addressed the issue in court the same day.

According to media reports, Ms. Greenfield typically confers with Justice Engoron frequently during trials, and communications between the judge and clerk during the Trump trial, although atypical for most clerks, were regular.

It wasn’t until about half a month later that Justice Engoron was notified that a Trump campaign website had archived the original social media post made by President Trump and hadn’t deleted it until then. This resulted in a $5,000 fine and a warning of possible “imprisonment” and serious sanctions.

Several days later, President Trump made reference to a “partisan” person sitting “alongside” the judge without referencing Ms. Greenfield by name, leading to a $10,000 fine after Justice Engoron put President Trump on the witness stand to testify.

Justice Arthur Engoron (R) presides as President Trump appears to testify in his civil fraud trial at the New York state Supreme Court in New York on Nov. 6, 2023. (Jefferson Siegel/Pool/AFP via Getty Images)

President Trump said he had been referring to the witness, Michael Cohen, whose tip led to the investigation and civil case. The judge deemed him “not credible” as a witness.

Subsequently, President Trump’s attorneys argued that in court, Ms. Greenfield was whispering, passing notes, and rolling her eyes when they questioned witnesses but that she wasn’t doing the same for the defense.

The judge extended the gag order beyond President Trump to cover the defense attorneys, who detailed evidence that they believe shows Ms. Greenfield’s political bias at length in their court filing calling for a mistrial.

In particular, they highlighted Ms. Greenfield’s political activity. She had donated more than $500 to political campaigns in 2022, violating judicial rules and ethics.

Justice Engoron rejected both the motion and argument that he and his clerk were “co-judging,” saying his decisions were his alone. He said that exceptions to the donation rule allow candidates, such as Ms. Greenfield, to donate more than $500 to their own campaigns. She ran for and lost a judicial seat in civil court. Attorneys for President Trump argue that she made donations to other Democratic candidates as well.

“Justice Engoron’s deliberate obfuscation of this fact is both troubling and telling of his ethos to defend the Principal Law Clerk’s conduct regardless of whether it is proper under the law,” they wrote in the new filing.

‘Avowed Political Enemy’

Now, the defense attorneys are arguing that the gag order violates First Amendment rights and highlights the bias and “the very open, public, and partisan conduct that has infected and permeated the trial.”

They also argue that Ms. Greenfield openly supports and donates to Democrats and organizations “that have declared President Trump their avowed political enemy.”

The former president has frequently decried the multiple prosecutions against him as election interference, pointing out that most were only brought after he declared his intention to run for reelection. His legal teams have made this argument in court filings as well.

Attorneys with the New York district attorney’s office had argued that President Trump’s free speech interests are “vanishingly slim.” They produced an affidavit from a risk officer at the judicial branch who testified that hundreds of threatening voicemails had been made to the judge and clerk, coming out to 275 single-spaced pages when transcribed.

Attorneys for President Trump rejected the argument that hearsay about hostile or offensive speech from third parties should be enough to restrict President Trump’s speech.

They noted that no times or dates were associated with the reference to voicemail threats and emails to Ms. Greenfield and that though the message excerpts were “reprehensible,” they hadn’t shown a threat. Additionally, they pointed out that Ms. Greenfield had “allowed herself to be voluntarily photographed, videotaped, and identified by name in the national and international media, despite the prior existence of purported security concerns,” and that there was no mention of this from the judge or state attorneys.

President Trump’s team argued that “enforced silence” will raise suspicion against, rather than enhance respect for, the court.

Arguments for the gag order in New York have since been picked up by federal prosecutors in a case against the former president alleging that he interfered with the 2020 elections.

A separate gag order was imposed on President Trump in that case, citing a similar rationale of preventing “threats” and “harassment.”

Defense attorneys in that case are arguing that the situations are completely dissimilar.

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