I’ve carefully reviewed Trump’s motion for a mistrial in the unprecedented proceeding before Democratic Judge Engoron. The brief lays out a disturbing pattern of bias, misconduct. and unusual and threatening behavior by the court: The Constitution guarantees Defendants a fair and impartial trial. Here, in an unprecedented case commanding worldwide interest and attention, it is imperative that nothing compromise that guarantee and thereby undermine public confidence in our legal system. While counsel are subject to a gag order apparently imposed to impede the issues herein presented from becoming public, it is a fundamental precept of American jurisprudence that sunlight is the best disinfectant. Indeed, “[t]he assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. . . . And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” Bridges v. California, 314 U.S. 252, 270-271 (1941).
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While the Court has restricted public criticism of itself on the issues herein presented in a series of unconstitutional gag orders entered sua sponte, the Supreme Court instructs that “[t]he operations of the courts and the judicial conduct of judges are matters of utmost public concern.” Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 839 (1978). Moreover, there can be no doubt of the public perception of bias in this case. Even commentators who are politically opposed to President Trump have noted the biased nature of the proceedings and the astonishing departures from ordinary standards of impartiality. See, e.g., Andrew McCarthy, Elected Dem AG and Judge Cook Up a Fraud Theory in Trump’s New York Trial, Nat’l Review (Nov. 7, 2023), at nationalreview.com/2023/11/electe (“The case against the former president lacks victims, so Tish James and Arthur Engoron are inventing some….
Engoron keeps cutting Trump and his lawyers off by insisting that he has already decided Trump (a) committed fraud, (b) overvalued his assets, and (c) cannot be insulated by the disclaimer in his SFCs (advising counterparties to do their own due diligence in evaluating asset values).”). This appearance of bias threatens both Defendants’ rights and the integrity of the judiciary as an institution. As developed herein, in this case the evidence of apparent and actual bias1 is tangible and overwhelming. Such evidence, coupled with an unprecedented departure from standard judicial procedure, has tainted these proceedings and a mistrial is warranted. Specifically, the Court’s own conduct, coupled with the Principal Law Clerk, Allison Greenfield’s (“Principal Law Clerk”) unprecedented role in the trial and extensive, public partisan activities, would cause even a casual observer to question the Court’s partiality. Thus, only the grant of a mistrial can salvage what is left of the rule of law. The brief includes photos of the court bench, which includes his law clerk (who allegedly is an active Democratic Party donor and activist) sitting next to him.
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— Tom Fitton (@TomFitton) November 17, 2023
The Trump team argues the court is engaged in improper “co-judging”: This Court has also impermissibly exceeded its discretion in granting his Principal Law Clerk unprecedented status and input into these proceedings and restricted the speech of anyone who seeks to comment on this status, input and/or perceived partisan bias. This Court, has, during the special proceeding, all pre-trial proceedings and since this trial began, allowed his Principal Law Clerk to preside on the bench with him to his right-hand side. This arrangement is depicted in the below photographs published by Getty Images and the Associated Press. The brief also accuses the judge of improper commentary and “extrajudicial” activity touching on the case:
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This Court has contravened the Code of Judicial Conduct (the “Code”) and created the appearance of impropriety through publicly commenting on a proceeding before him. Affirmation of David Demarest (“Demarest Aff.”) ¶¶ 16. This Court, in his capacity as a Wheatley School alumnus, has publicly posted links in the Wheatley newsletter he maintains to articles disparaging parties and counsel, including Eric Trump, President Trump, Ms. Habba, and Cushman and Wakefield, and covering his own decisions, in derogation of the Code. 22 N.Y.C.R.R. § 100.3(B)(8) (“A judge shall not make any public comment about a pending or impending proceeding in any court within the United States or its territories”); see also Demarest Aff. ¶¶ 16-17. In an October 2, 2020, newsletter, this Court included links to articles about Eric Trump being compelled to testify in a subsection entitled “1967- Art Engoron – Articles about Decisions.” See Affirmation of Clifford Robert (“Robert Aff.”) ¶ 6. In the December 28, 2020, newsletter, the Court included links to articles about his decision on the Trump Organization’s claims of privilege from, inter alia, Bloomberg, the Washington Post, and CNN. Id. ¶ 7.
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In the February 16, 2021, newsletter, this Court included links to articles relating to the trial, characterizing one as a “humorous, irreverent take.” Id. ¶ 8. In the November 7, 2021, newsletter, the Court, in a section entitled “1967 – Man in the News,” linked five articles, again from the Washington Post, CNN, and Bloomberg, about his order in the special proceeding compelling Defendants to turn over certain documents. Id. ¶ 9. In the March 14, 2022, newsletter, the Court likewise, in the “Graduate in the News” section, posted links to articles in the New York Times, Washington Post, and Politico regarding his decision in the special proceeding to order Defendants to testify. Id. ¶ 10. In the May 8, 2022, newsletter, the Court posted links to New York Times and Newsweek articles regarding his decision to hold President Trump in contempt. Id. ¶ 11. In June 2022, the Court again posted a link to an NPR article that President Trump had lost the appeal. Id. ¶ 12. On July 3, 2022, the Court similarly linked an article from Business Insider about Cushman & Wakefield and two days later held it in contempt. Id. ¶ 13.
Finally, on September 11, 2022, just ten days before this lawsuit was filed, the Court posted a link to an Above the Law article criticizing Ms. Habba. Id. ¶ 14. The brief also accuses the judge of bias on the gag orders issue: The gag orders and the enforcement thereof reveal the Court has christened itself camera stellata: judge, jury, and executioner, proceeding sua sponte to act against President Trump in violation of the Constitution, the Judiciary Law, and First Department rules. 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. See Landmark Commc’ns, 435 U.S. at 839. This Court’s efforts to silence counsel from objecting to and creating a record of what anyone could observe publicly taking place in the courtroom during the trial thus plainly augment the appearance of impropriety. (The gag orders have since been lifted by an appellate judge who noted that “considering the constitutional and statutory rights at issue an interim stay is granted.”)
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