Trump sues New York fraud trial judge to shut down ‘unconstitutional’ gag orders, argues jurist is wielding ‘unfettered license to inflict public punishments’ for speech

Left: Former President Donald Trump, speaks to reporters as he leaves the courtroom during a lunch break in his civil business fraud trial, Oct. 4, 2023, in New York. (AP Photo/Mary Altaffer, File) Right: Judge Arthur F. Engoron poses for a photo in the courtroom for the 4th day of Trump’s civil fraud trial at the New York State Supreme Court on October 5th, 2023. (Photo by Meir Chaimowitz/NurPhoto via AP)/

Former President Donald Trump, fresh off of filing a mistrial memo accusing the presiding judge and the jurist’s principal law clerk of showing overwhelming, partisan bias at his New York civil fraud trial, has sued Manhattan Supreme Court Justice Arthur Engoron in a bid to shut down gag orders.

The Article 78 petition sought an interim stay of two “unconstitutional” gag orders Engoron issued, the first of which barred the parties in the case from verbally attacking the judge’s court staff (after Trump posted, falsely, on Truth Social that Principal Law Clerk Allison Greenfield was Sen. Chuck Schumer’s “girlfriend”). The second order prohibited Trump attorneys from “making any public statements, in or out of court, that refer to any confidential communications, in any form, between [the judge’s] staff and [the judge].”

When extending the gag order to the attorneys, Engoron wrote on Nov. 3 that Trump lawyers Christopher Kise, Clifford Robert, and Alina Habba “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 from a judge to a law clerk, or vice-versa, constitutes an improper ‘appearance of impropriety’ in this case. These arguments have no basis,” the judge continued.

Trump lawyers on Thursday submitted an emergency application asking the Supreme Court of New York Appellate Division, First Department, to issue an interim stay of the gag orders “pending a full panel determination of Article 78 petition brought in the nature of mandamus/prohibition.” The lawyers asserting the gags were “unconstitutional” and that the “sanctions imposed thereunder are in violation of the Judiciary Law and Rules of this Court.”

In the petition submitted by Alina Habba and Clifford Robert, the lawyers argued that the gag orders “unconstitutionally infringe on Petitioners’ freedom of speech guaranteed by the First Amendment and Article I, Section 8 of the New York Constitution.”

“Justice Engoron may not, by judicial decree, transmogrify the court’s summary contempt power into an unfettered license to inflict public punishments on a defendant for the defendant’s out-of-court statements made for the benefit of the fourth estate,” the petition said. “Nor does the court’s summary contempt power authorize Supreme Court and its staff to actively and independently investigate and prosecute violations of a gag order.”

Echoing Trump’s emergency motion in the U.S. Court of Appeals for the D.C. Circuit against his Jan. 6 judge’s gag order, the attorneys said that Engoron used the gag order to “muzzle” Trump and issued an impermissible prior restraint on speech “based on content and viewpoint.”

“While the desire to protect his staff may seem understandable, the Gag Orders, as entered, are not narrowly tailored to do so,” Trump’s attorneys said. “The mere potential that speech may anger or provoke others likewise does not entitle Justice Engoron to suspend wholesale the rights afforded litigants by the First Amendment and the New York Constitution.”

“The First Amendment does not permit Justice Engoron to restrict speech based on the audience’s anticipated unruly reaction — that is a forbidden ‘heckler’s veto,’” they added.

The Article 78 suit against Engoron is a route that Trump has taken before — without success.

New York Attorney General Letitia James (D) and her office have already weighed in at the Supreme Court of New York Appellate Division, First Department, through Assistant Solicitor General Daniel S. Magy (since James was sued as well).

“As a threshold manner, the Court should deny petitioners’ application because article 78 by its plain terms cannot be used to challenge a determination that ‘can be adequately reviewed by appeal to a court or to some other body or officer,’” Magy wrote. “Although orders issued sua sponte without notice are not appealable, there is nothing preventing petitioners from filing a motion to vacate the orders and appealing from any denial of that decision.”

Even if the Article 78 gambit “were proper,” Magy continued, “petitioners’ arguments are meritless.”

The assistant solicitor general said that the gag orders, issued against Trump and his lawyers in response to “disparaging, untrue” statements about Engoron’s principal law clerk and the court proceedings, were “narrowly tailored” for the purpose of protecting court staff from threats and “preserving the orderly administration of the trial.”

“As Supreme Court explained, given the high-profile nature of the trial, comments like those made by Mr. Trump ‘can, and in some cases already have, lead to serious physical harm, and worse,” the state filing concluded. “Indeed, Supreme Court has already been ‘inundated with hundreds of harassing and threatening phone calls, voicemails, emails, letters, and packages.’”

Law360’s Frank Runyeon reported Thursday afternoon that swiftly held oral arguments resulted in Associate Justice David Friedman of the Appellate Division, First Department, temporarily lifting the gag orders.

Breaking: Associate Justice David Friedman temporarily lifted Justice Engoron’s gag orders on Donald Trump and his attorneys in the AG’s civil fraud case.

— Frank G. Runyeon (@frankrunyeon) November 16, 2023

Law&Crime can confirm that disposition. The justice’s writing appears to say: “Considering the constitutional and statutory rights at issue an interim stay is granted.”