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Donald Trump

Donald Trump's lawyers urge NY appeals court to overturn gag order, arguing fines were 'in a fit of pique'

Trump has appealed two gag orders, in his New York civil trial and federal election conspiracy trial, by arguing he infringe on his speech while campaigning for president.

Bart Jansen
  • Trump's lawyers submitted documents arguing the judge and clerk in the case are biased and that he can't be blamed for how others respond to his criticism of them.

Donald Trump’s lawyers urged a New York appeals court Monday to keep blocking the gag order in his high-stakes civil fraud trial by arguing the restrictions were too broad and the judge had imposed $15,000 in fines "in a fit of pique."

The judge in the case, Arthur Engoron, had placed a series of restrictions on the former president and his lawyers to prevent them from commenting on court staff. The restrictions came after Trump posted a picture of law clerk Allison Greenfield that falsely accused her of being Senate Majority Leader Chuck Schumer's "girlfriend." Engoron fined Trump a combined $15,000 for two violations of the gag order.

But on Nov. 16, a state appeals court judge suspended Engoron's order, setting the stage for new hearings over possible limits the 2024 Republican presidential front-runner's speech and his demand for a mistrial in the $250 million case.

“This Star Chamber approach is particularly indefensible when the gag orders actually shield the Court itself from public criticism for perceived bias – one of the most fundamental rights under the First Amendment,” Trump’s lawyers wrote in a 1,900-page filing Monday.

Trump’s lawyers submitted evidence of Greenfield's contributions to Democratic campaigns to justify his comments about her partisanship. And they argued that the former president couldn't be blamed for a tsunami of threats and harassment against the judge and his clerk.

Trump's comments on his civil and criminal cases have caused thorny legal battles as the courts struggle with putting a leading presidential candidate on trial. Trump has appealed gag orders in two cases: the New York fraud trial and his pending federal election conspiracy trial. Last week, Georgia prosecutors sought to revoke the bond of Harrison Floyd, one of Trump's co-defendants in a state election racketeering case over his social media posts, but the judge refused.

Former President Donald Trump speaks to the media as he arrives to testify for his civil business fraud trial at New York Supreme Court on Monday, Nov. 6, 2023 in New York City, NY. Mandatory

Hundreds of pages of threatening emails

Lisa Evans, deputy counsel in New York's Office of Court Administration, representing Engoron and Greenfield, said in a filing last Wednesday that “threats, harassment and disparaging comments increased exponentially” after Oct. 3. That was the day Engoron issued his first gag order, after Trump posted the picture of Greenfield with Schumer.

“Although Mr. Trump did not directly threaten Ms. Greenfield, the comments made in his post resulted in hundreds of threatening and harassing voicemail messages that have been transcribed into over 275 single-spaced pages,” Evans said in her affidavit.

Evans argued "it is unquestionable" that "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."

Greenfield’s personal cellphone number and email addresses have been compromised, Evans said. Greenfield receives 20 to 30 calls a day and 30 to 50 messages through social media and email with harassing and disparaging comments, Evans said.

Justice Arthur Engoron presides over the civil fraud trial of former President Donald Trump and his children at New York State Supreme Court on Nov. 13, 2023, in New York. Seated next to him is clerk Allison Greenfield.

State Attorney General Letitia James has accused Trump, his two elder sons, two company executives and several business entities with defrauding banks and insurance companies by inflating the value of the former president's assets, including his own Trump Tower apartment.

Dennis Fan, senior assistant solicitor general in James' office, argued Wednesday that the former president's repeated comments about the clerk were unwarranted and that Trump was unlikely to ultimately succeed in overturning the gag order.

Trump made "highly inappropriate, and personally identifying attacks against the court’s principal law clerk," Fan said in his affidavit. "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."

In this courtroom sketch, former President Donald Trump, center, answers questions at the New York Supreme Court on Nov. 6, 2023.

Judge fined Trump 'in a fit of pique,' lawyers say

The trial will determine the damages Trump his other defendants will face after Engoron determined in September that they had committed fraud for years in property valuations. James sought $250 million and Engoron ordered the cancellation of the Trump Organization's business certificates, which would prevent it from doing business in the state − although that decision is on hold while the case is appealed.

Trump's lawyers have asked for a mistrial in part by arguing Engoron provided unprecedented status to Greenfield by consulting with her during the trial. The lawyers also contend Engoron's bias was revealed in links to stories about Trump and his lawyers that the judge posted to his high school alumni newsletter from 2020 to 2022. Greenfield contributed $3,000 to Democratic candidates in 2022 and $900 in 2023, according to Trump's lawyers.

"While a Justice of the Court no doubt has ample discretion to consult with his or her Law Secretaries, this unprecedented arrangement exceeds the outer limits of such discretion," Trump's lawyers wrote in Monday's filing.

Trump's legal team contends he shouldn't be blamed for what others say about the judge and clerk.

"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 lawyers wrote.

In balancing the interests of Trump's free speech against a fair trial, the former president's lawyers argued that restraining his comments would be justified only under a "clear and present danger" of a serious threat to the administration of justice.

"Here, the Gag Orders are not the result of any such careful balancing of interests," the lawyers wrote. "They were imposed by this Court in a fit of pique."

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