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Donald Trump’s lawyers have added another feather to their dunce caps in the form of a gag order from New York Supreme Court Justice Arthur Engoron. This is on top of the sanctions they got for filing frivolous motions when the court granted the state partial summary judgment against their clients. Truly, they are making the practice of law great again.
For the past three days, Trump’s adult sons have bumbled through their testimony in the civil fraud suit against their family and company. Don Jr, a Wharton graduate, claimed to be wholly unaware of the concept of generally accepted accounting principles, scoffing that he preferring to outsource the bookkeeping to paid retainers. His brother Eric affected to be a CEO who pours concrete and steers clear of the books. He’s like Bob the Builder, but with wingtips! Both siblings testified that they had, indeed, signed the documents attesting to the truth of those fraudulent financial statements, but they never intended lenders and insurers to rely on that stuff, LOL!
It is perhaps not a coincidence that Trump’s lawyers Chris Kise, Cliff Roberts, and Alina Habba chose this week to go apeshit in the courtroom, doing everything short of donning bolero pants and waving a red flag at Justice Arthur Engoron.
On October 3, Trump posted an attack on the judge’s principal law clerk, falsely implying that she was Senator Chuck Schumer’s girlfriend. After being hauled into chambers, Kise, Roberts, and Habba warranted that their client would take down the post and cut that shit out. Because they are not crazy.
Trump, however, is both crazy and careless. Since the court imposed a gag order on comments about the clerk, he’s managed to violate it twice: once by failing to remove the post from his campaign site, and once by disparaging the “person who’s very partisan” sitting next to the judge in a press conference outside the courtroom.
But in what certainly looks like a coordinated strategy, Habba complained on the 25th about the clerk’s demeanor, saying, “It is incredibly distracting when there are eye rolls and constant whispering at the bench when I’m cross examining.”
Yesterday, Kise picked up where Habba left off, suggesting that the judge was being led around by the clerk.
When Justice Engoron called him out on his thinly veiled misogyny, Kise countered that this was impossible, since he’d manage to father a female child.
Habba chimed in that there could be no sexism, because she has two X chromosomes and also despises the clerk.
Justice Engoron ordered Trump’s lawyers to knock it off already, but the melee continued today with Kise insisting that he had a First Amendment right to address the issue in open court and an obligation to do so to preserve it for appeal. Kise, the former solicitor general of Florida who argued multiple cases before the US Supreme Court, affected to be shocked and chagrined that the parties were not able to see the communications between the judge and his clerk. He complained that the courtroom cameras he been moved as part of a plot to make it harder to see their written notes. And he threatened to move for a mistrial based on an article in Breitbart which alleges that the clerk exceeded campaign contribution limits on court staff. The article is sourced to a serial litigant from Wisconsin who has registered a website in the clerk’s name as a place to host the bar complaint he filed against her.
In effect, these lawyers did everything but call in a troll storm on a civil servant, accomplishing what their boss could not get done without violating the gag order. They also managed to make themselves the center of the news cycle, eclipsing their clients’ disastrous testimony.
Perhaps suspecting that, without being reined in, these officers of the court would spend their entire weekend on conservative news outlets screaming the clerk’s name, Justice Engoron ended the day by extending the gag order to counsel.
Noting that Kise, Roberts, and Habba have made “on the record, repeated, inappropriate remarks” about the clerk, as well as “long speeches alleging that it is improper for a judge to consult with a law clerk during ongoing proceedings,” he barred them from “making any public statements, in or out of court, that refer to any confidential communications, in any form, between my staff and me.”
The judge clarified that his chambers had been inundated with threats and harassment during the trial, and he won’t allow Trump’s lawyers to paint a target on a staff member’s back:
I will not tolerate, under any circumstances, remarks about my court staff. The threat of, and actual, violence resulting from heated political rhetoric is well-documented. Since the commencement of this bench trial, my chambers have been inundated with hundreds of harassing and threating phone calls, voicemails, emails, letters, and packages. The First Amendment right of defendants and their attorneys to comment on my staff is far and away outweighed by the need to protect them from threats and physical harm.
He warned the attorneys that they had already preserved their record for appeal, and any further reference to the clerk would “result in serious sanctions.”
It’s unclear whether this will deter lawyers who long ago left behind any semblance of decorum when they decided to light their professional reputations on fire for Donald Trump.
Trump himself is set to take the witness stand on Monday, followed by Ivanka Trump, whose plea to the First Judicial Department to save her from having to be away from her babies on a school night fell on deaf ears. It’s impossible to predict what lunatic shenanigans Kise, Roberts, and Habba have planned to distract the media next week. At this point, what’s left other than literally lighting themselves on fire in the courtroom?
Odds that someone gets thrown in a holding cell next week?
BIGLY HIGH.
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.
