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Principal Law Clerk Allison Greenfield, Judge Arthur Engoron pictured on Nov. 2, 2023. (Jeenah Moon/Pool Photo via AP), Donald Trump pictured outside court (Photo by Michael Nigro/Sipa USA)(Sipa via AP Images)
Former President Donald Trump and his lawyers filed a memo in support of a mistrial in New York Attorney General Letitia James’ (D) civil fraud case, arguing that Manhattan Supreme Court Justice Arthur Engoron demonstrated his bias for all to see when he said in court nine days ago, “We are not here to hear what [Trump] has to say.”
A memorandum of law filed on behalf of Trump, his eldest sons Donald Trump, Jr. and Eric Trump, and the Trump Organization, among others, argued that “evidence of apparent and actual bias […] coupled with an unprecedented departure from standard judicial procedure, has tainted these proceedings,” warranting a mistrial.
A footnote at the bottom of page two pointed to comments Engoron made that, perhaps, the 2019 Ukraine phone call that led to Trump’s first impeachment wasn’t so “perfect” after all:
On argument on Defendants’ motion for a directed verdict, specifically the weight that should be accorded to President Trump’s testimony, the Court asked the following question: “Can I bring up something not in the record, but a matter of public knowledge? I think the perfect call with Zelensky about the military aid, there might have been code rather than straightforward talk.” Affirmation of Clifford Robert, ¶ 67. Such reference to a purely political trope demonstrates the Court cannot separate his, and his Principal Law Clerk’s, political bias from the obligation to be fair and impartial.
The memo argued that these remarks and others support their contention that “there can be no doubt of the public perception of bias in this case,” suggesting that even National Review’s Andrew McCarthy — “politically opposed to President Trump” — felt compelled to speak out:
See, e.g., Andrew McCarthy, Elected Dem AG and Judge Cook Up a Fraud Theory in Trump’s New York Trial, Nat’l Review (Nov. 7, 2023), at https://www.nationalreview.com/2023/11/elected-dem-ag- and-judge-cook-up-a-fraud-theory-in-trumps-new-york-trial/ (“The case against the former president lacks victims, so Tish James and Arthur Engoron are inventing some…. Engoron keeps cutting Trump and his lawyers off by insisting that he has already decided Trump (a) committed fraud, (b) overvalued his assets, and (c) cannot be insulated by the disclaimer in his SFCs (advising counterparties to do their own due diligence in evaluating asset values).”).
The memo also spent considerable time renewing concerns about Engoron’s Principal Law Clerk Allison Greenfield. Trump shared a post on Truth Social about Greenfield in October, leading Engoron to issue a gag order.
“Schumer’s girlfriend, Alison [sic] R. Greenfield, is running this case against me,” the post said, referring to a photo Greenfield posed for with Sen. Chuck Schumer’s (D). “How disgraceful! This case should be dismissed immediately.”
The Trump memo asserted that Engoron’s issuance of gag order sua sponte (on his own motion) was “unconstitutional” and had the effects of silencing criticism and shielding the “Principal Law Clerk’s ‘co-judging’ and partisan political activity from public scrutiny.”
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The memo in support of a mistrial also included Getty and Associated Press photos of Greenfield sitting next to Engoron in court, accusing the clerk of unconstitutionally acting as a “co-judge.” The filing, adding in screenshots of political donations to Democrats (“Democrat causes,” as the memo put it), then accused the court of violating New York rules against excessive donations by staff.
“As noted, the 2023 partisan political contributions were made while this action was pending!,” the memo continued. “More troubling than even the fact of these contributions exceeding lawful limits, many (if not all) of these organizations actively support the Attorney General!”
But Greenfield was not alone in activities evincing a bias, Trump lawyers argued.
Engoron is the founder and editor of the Wheatley School Alumni Association newsletter and has “publicly posted links in the Wheatley newsletter he maintains 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),” the memo said.
If there was any doubt about Engoron’s “bias,” the memo continued, one need only look to his courtroom statement on Nov. 6, when he said “We are not here to hear what he has to say,” referring to Trump.
“The role of the Court, particularly in a bench trial, is to carefully listen to and consider the testimony of all witnesses without bias or predilection. The foregoing statements, especially coupled with the Court’s prior, and inappropriate, finding President Trump is not credible, certainly create an appearance of bias,” the memo said. “These record facts also lead, fairly, to the conclusion the Court has predetermined the outcome of this proceeding and is merely going through the motions before it ultimately doles out punishment.”
Taken together, the Trump team said, there’s “demonstrable partisan bias present on the bench at trial” that can only be cured by “an immediate halt” to proceedings and a mistrial.
Read the memorandum of law here.
