NEW YORK — A gag order that barred Donald Trump from commenting about court personnel after he disparaged a law clerk in his New York civil fraud trial was temporarily lifted Thursday by an appellate judge who raised free speech concerns.
Judge David Friedman of the state’s intermediate appeals court issued what’s known as a stay – suspending the gag order and allowing the former president to speak freely about court staff while a longer appeals process plays out.
Former President Donald Trump speaks outside the courtroom after testifying at New York Supreme Court on Nov. 6, in New York. Eduardo Munoz Alvarez/Associated Press
The trial judge, Arthur Engoron, imposed the gag order Oct. 3 after Trump posted a false comment about the judge’s law clerk to social media on the second day of the trial in New York Attorney General Letitia James’ lawsuit. James alleges Trump exaggerated his wealth on financial statements used to secure loans and make deals.
Engoron later fined Trump $15,000 for violating the gag order and expanded it to include his lawyers after they questioned clerk Allison Greenfield’s prominent role on the bench, where she sits alongside the judge, exchanging notes and advising him during testimony. Friedman’s ruling allows the lawyers to again comment about court staff, as well.
At an emergency hearing Thursday, Friedman questioned Engoron’s authority to police what Trump says outside the courtroom. He also disputed the trial judge’s contention that restricting the 2024 Republican front-runner’s speech was necessary or the right remedy to protect his staff’s safety.
“Considering the constitutional and statutory rights at issue an interim stay is granted,” Friedman said, announcing his decision as he scribbled it on a court order.
The appellate court intervened after Trump’s lawyers filed a lawsuit against Engoron late Wednesday that challenged his gag order as an abuse of power. They sued the judge under a state law known as Article 78, which allows lawsuits over some judicial decisions.
Trump and his lawyers have been increasingly frustrated with Engoron presiding over the non-jury trial in James’ lawsuit. Trump, angered by a pretrial fraud ruling imperiling his real estate empire, has called him an “extremely hostile” judge. His lawyers Wednesday asked for a mistrial, citing evidence of “tangible and overwhelming” bias.
Trump and his lawyers have repeatedly criticized Greenfield, contending the former judicial candidate is a partisan voice in Engoron’s ear – though both are Democrats.
Engoron did not address the gag order ruling in court Thursday afternoon. Regarding the mistrial motion, he gave James’ office until Dec. 8 to respond before he rules.
Several of Trump’s lawyers and state lawyers from James’ office left the Manhattan trial to attend the emergency hearing at a state appellate courthouse a couple miles away. They sat around a table in a conference room and argued for about 45 minutes before Friedman ruled.
Trump’s lawyer Christopher Kise lauded the temporary stay as the “right decision.”
Friedman has “allowed President Trump to take full advantage of his constitutional First Amendment rights to talk about bias in his own trial, what he’s seeing and witnessing in his own trial – which, frankly, everyone needs to see,” Kise said.
Trump didn’t wait long to lash out at Greenfield, calling her a “politically biased and out of control, Trump Hating Clerk” in a post to his Truth Social platform Thursday night.
Trump lawyer Alina Habba said she saw no reason to tell Trump to stay quiet about the clerk, telling reporters that James “is continuing to disparage” her client and that “both sides need to be able to speak.”
State lawyers and a court system lawyer representing Engoron urged the appellate judge to keep the gag order in place. They argued the trial judge had taken a reasonable step to protect his staff amid increased threats to their safety.
Engoron and his staff have received hundreds of threatening and antisemitic phone calls and letters since the trial began Oct. 2, court system lawyer Lisa Evans said. She blamed Trump’s comments about Engoron and Greenfield for amplifying his supporters’ anger toward them. Greenfield is “playing Whac-A-Mole now trying to block her number,” Evans said.
“It’s not that Mr. Trump has directly issued threats to the staff and Judge Engoron, it’s that what he’s said has led his constituents” to make threats, Evans argued, comparing the potential effect to the Jan. 6 capitol riot and a violent attack on Rep. Nancy Pelosi’s husband, Paul.
“That is not political speech. That is threatening behavior and it should be stopped,” Evans said.
Kise suggested the safety concerns were overblown, arguing that Engoron was using the guise of threats – and the “hobgoblins of Trump’s a bad person and he says bad things” – to keep the ex-president and his lawyers from questioning Greenfield’s influence on the trial.
Trump hasn’t threatened Greenfield, nor has he disclosed any personal information such as her home address, Kise said. Meanwhile, he noted, she’s routinely photographed sitting next to Engoron by media photographers and videographers covering the trial.
State lawyer Daniel Magy argued that Trump’s immense social media audience had made the clerk more of a target for threats. Trump’s offending social media post was based on a post by someone else who was followed by just a handful of people.
Both posts included a picture that Greenfield had publicly posted online of her with Senate Majority Leader Chuck Schumer, but Trump added a falsehood about her personal life before sending it off to his millions of followers.
Kise on Thursday characterized Trump’s addition as “political parody” and Friedman questioned if the blowback for Greenfield was entirely Trump’s fault, asking, “If you put something out in public and then it goes viral, who’s responsible?”
Engoron fined Trump $5,000 on Oct. 20 after his post was found to have lingered on his campaign website after the judge ordered it deleted. He added a $10,000 fine Oct. 26 after Trump commented outside court about “a person who’s very partisan sitting alongside” the judge. In an extraordinary moment, Engoron abruptly called Trump to the stand and questioned him before deeming his denial “not credible” and issuing the fine.
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