UPDATE: APPELLATE DIVISION UPHOLDS TRUMP GAG ORDER IN NY FRAUD CASE November 30.2023
Former President Trump faces cross examination today in the New York civil fraud case against him and his companies after being twice held in contempt, and his lawyers reprimanded.
§ 5104. Enforcement of judgment or order by contempt. Any interlocutory or final judgment or order, or any part thereof, not enforceable under either article fifty-two or section 5102 may be enforced by serving a certified copy of the judgment or order upon the party or other person required thereby or by law to obey it and, if he refuses or wilfully neglects to obey it, by punishing him for a contempt of the court.
Donald J. Trump will begin testimony today in the sanctions phase of the civil fraud case presented by New York Attorney General Letitia James. The trial judge Arthur F. Engoron has already held Trump liable on summary judgment for fraudulent statements regarding his assets - which were relied on by investors and lenders in his properties.
Soon after the non-jury trial began - to determine what sanctions should be imposed for the frauds Trump and his companies committed - the former President made personal attacks on the justice's Principal Law Clerk. In the New York Judiciary Principal Law Clerk is a career position to provide legal research and opinion drafting services for judges. It is a confidential position, filled by a lawyer personally appointed by the judge.
The judge recites the history of Trump, Sr.'s misconduct
On October 3, 2023, after Defendant Donald J. Trump posted to his social media account an untrue, disparaging, and personally identifying post about my Principal Law Clerk, I imposed on all parties to this action a very limited gag order, "forbidding all parties from posting, emailing, or speaking publicly about any members of my staff," emphasizing, quite clearly, that "personal attacks on members of my court staff are unacceptable, inappropriate, and I will not tolerate them under any circumstances." I further made clear that "failure to abide by this directive will result in serious sanctions." (emphasis original)
When for seventeen days Trump did not remove that statements from his campaign website the judge imposed a $5,000 sanction for contempt. A minor sanction like that did not entitle the contemnor to a jury trial, nor were there any factual disputes that would require a neutral fact-finder. Undeterred Trump further violated the order which is designed to preserve the dignity of the court and to secure the safety of court personnel:
On October 25, 2023, after conducting a brief hearing, I concluded that Donald J. Trump had intentionally violated my gag order by stating to a gaggle of reporters outside the courtroom the following statement in reference to my Principal Law Clerk: "This judge is a very partisan judge with a person who's very partisan sitting alongside him, perhaps even more partisan than he is," and fined him an additional $10,000.00. I imposed the gag order only upon the parties, operating under the assumption that such a gag order would be unnecessary upon the attorneys, who are officers of the Court.
Lawyers are expected, as Comment [2] of the Preamble to the ABA Rules of Professional Conduct notes
As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.
But Trump's lawyers, apparently copying the manner of their client for whom bombast is characteristic, themselves engaged in similar conduct. On Friday, November 3 Justice Engoron explained:
I imposed the gag order only upon the parties, operating under the assumption that such a gag order would be unnecessary upon the attorneys, who are officers of the Court.
[But]] Over the past week, defendants ' principal attorneys, namely, Christopher Kise (admitted pro hac vice) (Continental PLLC), Clifford Robert (Robert & Robert PLLC) and Alina Habba (Habba Madaio & Associates LLP), have 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 rom a judge to a law clerk, or vice-versa, constitutes an improper "appearance of impropriety" in this case. These arguments have no basis.
Pursuant to 22 NYCRR § 100.3(B)(6)(6)(c): "A judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges" ( emphasis added). This is precisely the role of a Principal Law Clerk in the New York State Courts.
The judge further cited New York Judicial Ethics Opinion 07-04 which explains that "The relationship between a judge and his/her law clerk is one of particular trust and confidence. Although a judge and his/her law clerk are of course not “partners,” the two engage in the kind of professional interchange that might be found between long-time colleagues in a law firm."
Noting that the `gag order does not apply to remarks about him, the judge explained his concerns:
The threat of, and actual, violence resulting from heated political rhetoric is well-documented. Since the commencement of this bench trial, my chambers have been inundated with hundreds of harassing and threatening phone calls, voicemails, emails, letters, and packages. The First Amendment right of defendants and their attorneys to comment on my staff is far and away outweighed by the need to protect them from threats and physical harm
Gag order extended to Counsel
Thus, for the reasons stated herein, I hereby order that all counsel are prohibited from making any public statements, in or out of court, that refer to any confidential communications, in any form, between my staff and me.
Failure to abide by this directive shall result in serious sanctions.
- GWC
11/6//2023
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