(Photo by Ali Shaker/VOA)
Yesterday, Donald Trump lost his bid to lift the gag order in his New York civil fraud case before his scheduled testimony on Monday. His lawyers waited four days after a four-judge panel reinstated the ban on mentioning Justice Arthur Engoron’s law clerk to appeal it, at which point it was too late. Any ruling will now come after the conclusion of the trial when the issue will be functionally moot.
Admittedly, New York’s court system is structurally and procedurally weird. Between the constant interlocutory appeals, the trial court being “Supreme,” and the confusing array of appellate panels, it’s easy for an outsider to get confused. So it was a bit of a headscratcher when Donald Trump put Chris Kise, the former Florida solicitor general, in charge of his New York civil fraud case.
Maybe he figured attorney Alina Habba would be able to keep Kise on the straight and narrow. (AHEM.) If so, that turns out to have been a bad bet, since Kise immediately pissed off the court by moving to get the case transferred to the Commercial Division and/or dismissed for lack of jurisdiction. The same arguments had been repeatedly rejected, as the judge furiously noted.
“Defendants’ conduct in reiterating these frivolous arguments is egregious. We are way beyond the point of ‘sophisticated counsel should have known better’; we are at the point of intentional and blatant disregard of controlling authority and law of the case,” Justice Engoron wrote in September in an order granting partial summary judgment to the state and imposing sanctions on Kise and defense lawyers Cliff Roberts and Michael Madaio, Habba’s partner.
Habba herself was not sanctioned, since this was during the brief period when she wandered off to pretend to be legal spokesman for Trump’s Save America PAC. She’s since returned and can be seen scowling theatrically next to Trump in the courtroom.
Unable to restrain their client from attacking Justice Engoron’s law clerk, even in the face of a gag order imposed on the second day of the trial, Habba, Kise, and Roberts have made a virtue out of necessity. After initially conceding that the attacks were beyond the pale, they now call them a First Amendment issue of the highest priority, while making the law clerk’s supposed undue influence over the judge into the central issue of their motion for a mistrial.
And for a moment two weeks ago, the wind was at their backs. Citing “constitutional and statutory rights at issue,” First Department Justice David Friedman put an interim stay on Justice Engoron’s gag orders banning Trump and his lawyers from talking about the clerk. Trump resumed his attacks with gusto. But then court security staff submitted proof of the maelstrom of filthy, antisemitic attacks and death threats raining down on the clerk and the judge, and on November 30 the appellate panel reinstated the gag without comment.
Kise called it “a tragic day for the rule of law,” but Trump’s legal team did nothing until Monday, when Roberts moved for expedited leave to appeal the November 30 ruling.
As usual, Trump’s lawyers were heavy on the histrionics:
By vacating the stay of the Gag Orders, this Court has bestowed on Justice Engoron an absolute, unfettered power to punish Petitioners for validly objecting to demonstrable partisan bias on the bench. At stake is a civil defendant’s ability to critique, without fear of reprisal, the court presiding over a bench trial historic both by virtue of the parties thereto and the Attorney General’s novel and open manipulation of the Executive Law to punish her political enemies. This Court should have protected the bedrock rights underpinning the legitimacy and integrity of the judicial system and continued the stay issued by Justice Friedman. Instead, the Court’s order abrogated those rights and Petitioners’ constitutionally protected speech by allowing Justice Engoron to continue to punish Petitioners without process and to silence their protest of flagrant bias in the chambers of Supreme Court. The injury the Court’s order inflicts is all the more severe because it precludes speech in which tens of millions of Americans have an obvious and demonstrated interest, during a presidential election in which one of Petitioners, a former President of the United States, is the leading contender.
That was rejected by Justice Sallie Manzanet-Daniels, in a brief order yesterday, setting off a hilarious exchange in the clerk’s office as described by MSNBC’s Lisa Rubin.
And when told repeatedly there was nothing they could do to expedite either of their two imagined avenues for relief before 12/11, they were visibly frustrated a la Clueless. Surely, you are not the last word on this, they seemed to suggest to the court attorney. 4/
— Lisa Rubin (@lawofruby) December 4, 2023
Kise appeared stunned that his efforts to speak to the manager were unavailing because your failure to plan is not the court’s emergency. And so Trump will have to answer questions about the actual allegations of fraud, rather than scream inanities about the law clerk.
Oh, who are we kidding? You know he’s going to do it anyway.
Liz Dye lives in Baltimore where she writes the Law and Chaos substack and appears on the Opening Arguments podcast.