(Photo by Isaac Brekken/Getty)
Last week, Donald Trump moved for a mistrial in his New York civil fraud case on grounds that Justice Arthur Engoron is mean to him.
The performative motion, filed by Trumpland lawyers Chris Kise, Alina Habba, and Cliff Roberts, leaned heavily into the claim that there is something inappropriate about the judge’s relationship with his principal law clerk, whom Trump falsely accused of being Senator Chuck Schumer’s girlfriend. As proof they cite their own choreographed outrage on October 25, when each of them complained in open court about her behavior. They also allege that she exceeded contribution limits to various local Democratic committees, a claim recently surfaced by the conservative outlet Breitbart. Thus the partisan positions of those committees are imputed wholesale to the clerk, and, by the transitive judicial property, to the judge himself.
But if you outsource your legal research to Breitbart, you might miss a few nuances. Luckily, Justice Engoron, who is not in the habit of filing motions based on vibes, man, was happy to elucidate Trump’s counsel in his order denying their motion.
First, he dropkicked the affidavit from the retired judge Trump’s lawyers trotted out as an “expert witness” to opine that all the trial judge’s decisions were wrong.
“[L]egal arguments are for counsel to make, and for judges to decide. Therefore, such expert affidavit is neither necessary not permitted,” he noted icily, with a string cite describing this as “black letter” law, “so well-established that it is often deemed a basic premise or assumption of evidence law-a kind of axiomatic principle.’”
Then he noted that, as a candidate for judicial office, the regular contribution limits didn’t apply to money used to purchase tickets to campaign events:
When deducting the price of tickets to political functions that my Principal Law Clerk attended from all the contributions to which defendants cite, the remainder is still well below the ethical and legal permissible annual limit. Defendants further attempt to argue that since my Principal Law Clerk attended events sponsored by certain organizations, also legally and ethically permitted, each and every separate action and position by those organizations should be imputed to her, and by proxy, to me. Such arguments are nonsensical; and in any event, they are a red herring, as my Principal Law Clerk does not make rulings or issue orders – I do.
“I have, pursuant to 22 NYCRR 100.3(B)(6)(6)(c) and Advisory Opinion 07-04, an absolute unfettered right to consult with my law clerks in any way, shape, or form I choose,” he added, swatting aside the ridiculous suggestion that he is somehow unduly influenced by his staff.
And he defended his habit of linking to stories about the case (including from ATL) in his alumni newsletter.
“When an online publication mentions a graduate, including myself, I include an excerpt and/or a link, usually both. Consequently, I have been the subject of entries concerning this case due to its undeniable newsworthiness,” he wrote. “I neither wrote nor contributed to any of the articles on which defendants focus, and no reasonable reader could possibly think otherwise.”
Indeed, it is unlikely that readers thought the judge was the author of posts mocking Habba for whining about “‘Litigious’ Prosecutors Trying To Frame Her Client For The Crime Of Having A Messy Office” or praising the judge for offering Trump’s lawyers a “Free Lesson On How Privilege Works.”
And still, no, really, you shouldn’t have.
The Attorney General’s office urged the court to allow full briefing on the matter to “avoid the potential for motion practice before the Appellate Division” and to “allow[] this Court to address Defendants’ spurious allegations in the first instance,” rather than on interlocutory appeal.
But Justice Engoron refused, writing, “in good conscience, I cannot sign a proposed order to show cause that is utterly without merit, and upon which subsequent briefing would therefore be futile.”
And so the proceedings ground on today in Manhattan. But soon we’ll all take another fun field trip to the First Judicial Department. Whee!
Elizabeth Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.
