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), (right) attorney Andrew Leitman Bailey in an NBC New York interview (WNBC/screengrab, as it appeared in court documents)
Donald Trump’s lawyers are renewing efforts to force his civil fraud trial judge off of the case, this time saying that a real estate lawyer’s claims of a hallway chat weeks before the jurist handed down a decision amounted to an appearance of impropriety that requires him to step aside.
A memo in support of the recusal motion filed Thursday by Alina Habba, Clifford Robert, and Christopher Kise said it seems that New York Supreme Court Justice Arthur Engoron “may have engaged in actions fundamentally incompatible with the responsibilities attendant to donning the black robe and sitting in judgment” — particularly, having “prohibited communications regarding the merits of this case[.]”
Worrying about “irreparable damage to the rule of law,” the Trump team asserted that the “gravity” of the situation has at least created an “appearance of impropriety” that “mandates recusal.”
“The integrity of this tribunal and President Trump’s right to a fair and impartial trial, have been ineluctably imperiled,” the filing said. “Under these circumstances, recusal is mandatory and essential to preservation of the rule of law.”
In early May, it was reported that the judge was under investigation by the New York State Commission on Judicial Conduct over an alleged hallway conversation with Andrew Leitman Bailey, a real estate lawyer that Trump attorneys said, citing a CNN article, has sued Trump at least seven times.
Bailey spoke with local NBC affiliate WNBC on Feb. 16, the day when Engoron slapped the former president with a $454 million civil fraud penalty following a bench trial. Trump, his eldest sons, and the Trump Organization were found liable for fraud before the trial even started.
Bailey said during the interview that he had a conversation with the judge around three weeks before the decision.
“I actually had the ability to speak to him three weeks ago,” Bailey said. “I saw him in the corner [at the courthouse] and I told my client, ‘I need to go.’ And I walked over and we started talking … I wanted him to know what I think and why … I really want him to get it right.”
“He had a lot of questions, you know, about certain cases. We went over it,” Bailey claimed, though he later said Trump’s name wasn’t mentioned.
New York State Office of Court Administration spokesperson Al Baker reportedly responded to Bailey’s claims by saying no “ex parte conversation concerning this matter occurred between Justice Engoron and Mr. Bailey or any other person.”
“The decision Justice Engoron issued February 16 was his alone, was deeply considered, and was wholly uninfluenced by this individual,” Baker reportedly emphasized.
At the time, Trump Christopher Kise reacted to the report by saying the Baker statement didn’t make the issue go away.
“The code doesn’t provide an exception for ‘well, this was a small conversation’ or ‘well, it didn’t really impact me’ or ‘well, this wasn’t something that I, the judge, found significant,”” Kise reportedly told WNBC. “No. The code is very clear.”
Now, months after the Bailey interview, Trump’s team is digging deeper into the issue as part of a bid to force Engoron’s recusal, writing that “there is no other means of dispelling the shadow that now looms over this Court’s impartiality, fairness, and ability to adhere to the Code.” To that end, the Trump attorneys are also subpoenaing Bailey.
“This Court has simultaneously denied the existence of any ex parte communication while seemingly confirming that such conversation did take place by stating that it did not influence this Court’s decision. Mr. Bailey has, on two occasions, publicly stated that the ex parte communication occurred and involved substantive discussion of the issues presented in the case,” the Trump memo in favor of recusal continued. “Moreover, there is apparently now an active and ongoing investigation of these matters by the Commission.”
“Consequently, there are substantial issues of fact regarding both the existence of the communications and their potential impact on this Court’s decision,” the filing concluded. “Therefore, an evidentiary hearing is necessary to safeguard Defendants’ constitutionally guaranteed right to a fair and impartial trial and the integrity of the judiciary.”
Colin Kalmbacher contributed to this report.
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