Appeals Court Temporarily Lifts Trump Gag Order in NY

Former President Donald Trump leaves the courtroom for a lunch break during his civil fraud trial at New York State Supreme Court in New York on Nov. 6, 2023. Michael M. Santiago/Getty Images

New York Appellate Division Associate Justice David Friedman temporarily lifted a gag order on former President Donald Trump from the bench on Nov. 16 while the former president appeals the order.

“Considering the constitutional and statutory rights at issue an interim stay is granted,” the justice wrote.

The gag order was originally issued by New York Supreme Court Justice Arthur Engoron, who’s presiding over a civil bench trial regarding alleged fraud by The Trump Organization. This week, the defense filed a motion to declare a mistrial.

Justice Friedman questioned Justice Engoron’s authority to police President Trump’s speech outside the courtroom, saying gag orders are often issued in criminal cases in which the defendant may influence a jury.

Gag Order

President Trump has already been fined and has paid $15,000 in violation of the gag order, which prohibits him from making any statements about Justice Engoron’s staff. On Oct. 3, a day after the trial began, he made a Truth Social post about Allison Greenfield, Justice Engoron’s principal law clerk, including a screenshot of a photo of her posing with Sen. Chuck Schumer (D-N.Y.) at a political event and a caption that linked to her Instagram account.

The post was deleted 10 minutes later after Justice Engoron was made aware of it, and he issued a gag order verbally in court on the same day.

President Trump was later fined $5,000 after Justice Engoron was informed that one of the former president’s campaign websites retained a page archiving the original Truth Social post and then another $10,000 when he mentioned in remarks to the press a “partisan” person sitting “alongside” the judge without using a name.

This led to defense attorneys arguing with Justice Engoron about the appearance of impropriety and, later, potential bias in the case. He responded by expanding the gag order to prohibit defense attorneys from making statements about his staff or about the communications between himself and his staff.

Ms. Greenfield sits alongside Justice Engoron, and he frequently consults her during the trial. Defense attorneys had noted her “rolling her eyes” during their questioning of witnesses and passing the judge notes; this angered the justice, and the exchange rose to the level of yelling between the judge and attorneys.

‘Co-Judging’

On Nov. 16, defense attorney Alina Habba was asked whether she would advise President Trump against making remarks about Ms. Greenfield.

“I don’t see a reason for restrictions because Ms. James is continuing to disparage my client,” Ms. Habba said.

“Both sides need to be able to speak, and the fact that I, frankly, couldn’t and my client couldn’t speak for the past however many days is so unconstitutional.”

New York Attorney General Letitia James brought the case against President Trump and won a summary judgment on Sept. 26 ruling that the former president did inflate his net worth and was therefore liable for fraud. The ongoing trial requires state attorneys to prove intent to defraud and is expected to run through mid-December.

In the defense’s mistrial motion, the attorneys outlined the gag order and the behavior that it prevents counsel from criticizing at length, arguing that it contributes to the appearance of impropriety.

They argued that the court “impermissibly exceeded its discretion” by giving Ms. Greenfield “unprecedented status and input” in the trial, accusing the judge of “co-judging” the case with his clerk.

“Only a judge, not an unelected staff member, may exercise judicial authority under the New York Constitution, and the People of New York declined to elect the Principal Law Clerk when she ran for office,” the motion reads. 

Ms. Greenfield had previously run for Manhattan Civil Court in 2022. The defense has criticized her as “partisan,” noting that she has given campaign contributions exceeding $500 per fiscal year, in violation of New York court ethics rules. The mistrial motion accuses Ms. Greenfield of portraying her participation in a high-profile real estate case as an equal with the judge and cites her remarks—“We tried to stop the two towers”—in that case.

They criticized her judicial philosophy, pointing to her saying, “I think is incredibly important to consider, what would the people who elected me want me to do and is there any precedent ... that would allow me to achieve that outcome,” which they argue runs ”contrary“ to being ”faithful to the law.”

Defense attorneys noted that after they protested in court about the “constant note-passing,” the camera angles were changed, preventing those viewing the trial from seeing whether notes were being passed.

The New York Attorney General’s office has requested a deadline extension until Dec. 8 to file a response to the motion.

The Associated Press contributed to this report.