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(Photo by PAUL J. RICHARDS/AFP/Getty Images)
Last night, Donald Trump’s lawyers moved for a mistrial in the New York Attorney General’s civil fraud case. As usual, it was a hyper-caffeinated screed, long on histrionics and short on actual law.
They’re very mad that Justice Arthur Engoron talks to his principal law clerk during the trial and lets her sit next to him. And they’re mad that she gave a couple thousand dollars to Democrats, although they don’t explain exactly what that has to do with their client’s decades of fraudulent financial statements. And they’re mad that he didn’t let them transfer this case to the Commercial Division, a decision which was ratified a year ago by the administrative judge for civil matters and which they’ve failed to get the appellate court to reverse.
How will these very serious lawyers demonstrate the court’s inappropriate bias? By referring to their own courtroom whinging, of course!
For example, on October 25, 2023, Mr. Kise described the “considerable tension” caused by her position on the bench and indicated that it is “unusual” for a Principal Law Clerk to sit on the bench. Robert Aff., ¶ 40. Mr. Robert described his experience in New York State, such that he had never seen a situation where “you’re literally trying the case to two judges” with “notes constantly being passed,” where it “would appear the Court is in consultation with the Principal Law Clerk” with each ruling. Id. ¶ 41. Mr. Robert further described that this Court would “appear to be leaning in one direction and then [will] either receive a note or there will be an eye gesture or a roll of the face and something changes and it is of significant concern to [Defendants]. Id. ¶ 42. Ms. Habba added, “It is incredibly distracting when there are eye rolls and constant whispering at the bench when I’m trying to cross-examine a witness.
Wow! It’s almost like these lawyers staged this whole thing on October 25 so they’d have something to put in their motion for mistrial. Because the only other “evidence” they have of actual bias is the court ruling against them. And thanks to New York’s weirdo rules on interlocutory appeals — file early! file often! file now! — they’ve already taken those issues up with the First Judicial Department.
And speaking of New York’s bizarro legal system, Chris Kise, the former solicitor general of Florida who took $3 million to leave Foley & Lardner and light his reputation on fire for Donald Trump, is no expert. Kise is appearing here as pro hac vice counsel, so his hot takes on the seating chart in a New York courtroom is interesting but largely irrelevant. In fact, it is routine for trial judges in New York to have career clerks who function as a judicial adjunct. If Kise can’t work under these conditions, he can always go back to Florida.
The whole motion is an epic troll, in which Trump’s lawyers scream bloody murder about the manifest injustice of the gag order imposed after their client posted a picture of the law clerk on his Truth Social site falsely describing her as Senator Chuck Schumer’s “girlfriend.” After representing to the court that the post had been removed, Trump got fined for leaving it up on the campaign site, which captures his every rancid emanation. And then he got fined again, because he stood outside the courtroom and complained to reporters about “a person who is very partisan sitting alongside of [the judge], perhaps even much more partisan than he is.”
It’s one thing to complain that Justice Engoron failed to credit Trump’s testimony that this was a reference to the witness “sitting alongside” the judge. It’s quite another to do it just six pages after you complained about the impropriety of the clerk sitting alongside the judge, and included multiple photographs of the clerk and the judge on the bench to prove your point.
And to compound the bullshit, these flopping dorks omit to mention that their client told a scurrilous lie about the clerk when he was exercising his supposed Free Speech rights:
Following a repost of the Schumer picture by President Trump, in what may reasonably be interpreted as an effort to shield the Principal Law Clerk’s “co-judging” and partisan political activity from public scrutiny, the Court sua sponte entered an unconstitutional gag order prohibiting all parties from “posting, emailing, or speaking publicly” about any members of his staff.
Seems like they left something out, huh?
And so it is very much in the spirit of The Onion’s “The Worst Person You Know” meme that I have to concede that these dinguses actually have a point when they complain about the judge’s public comments about the case.
Because Justice Engoron edits his high school alumni newsletter, in which he included multiple links 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).”
And perhaps if these were all straight news articles, it could be excused. (It would still be dumb.) But in fact, two of the links were to ATL pieces making fun of the lawyers in this case, i.e. doing our jobs. One was a February 2021 post by Joe Patrice mocking Trump’s patently ridiculous privilege assertions, which Justice Engoron described as “a humorous, irreverent take.” And the other was a September 2022 broadside against Alina Habba by me. I was very mean, because, again, that is my job. And while I am flattered that the court appreciates my work, really, you shouldn’t have.
The AG has requested a full briefing on the motion, rather than a flat rejection and immediate appeal.
And the circus continues.
Elizabeth Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.
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