NEW YORK – A judge on Thursday reaffirmed Donald Trump's $10,000 fine for an out-of-court comment during his New York civil business fraud trial, a penalty the former president's lawyers argued was unfair and unconstitutional.
Judge Arthur Engoron fined Trump on Wednesday, ruling that his remarks to TV cameras outside the courtroom violated a limited gag order, which bars participants in the trial from commenting publicly about the judge’s staff.
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Outside court Wednesday, the 2024 Republican presidential front-runner complained that Engoron, a Democrat, is “a very partisan judge with a person who’s very partisan sitting alongside of him, perhaps even much more partisan than he is.”
Those words came after one of Trump's lawyers had groused earlier that morning about the judge's principal law clerk — the same woman Trump disparaged weeks earlier in a social media post that prompted the gag order.
Summoned Wednesday to the witness stand to explain whom he meant when he mentioned the person “alongside" the judge, Trump said he was talking not about the clerk, Allison Greenfield, but former Trump lawyer and fixer Michael Cohen, who was testifying at the time.
On Wednesday, Engoron called Trump’s contention “not credible,” noting that the clerk is closer to him than is the witness stand.
Trump’s lawyers insisted anew Thursday that Trump was talking about Cohen.
Lawyer Christopher Kise pointed out that right after Trump's reference to the person “sitting alongside” the judge, the former president said: “We are doing very well, the facts are speaking very loud. He is a totally discredited witness” — a reference to Cohen.
Kise argued that it meant the person “alongside” the judge was also Cohen, and he asked Engeron to rethink the fine. Kise also argued that if the judge maintained that the remark was indeed about the clerk, the fine would infringe on Trump’s First Amendment rights.
“His business is being attacked, and he’s entitled to comment, fairly, on what he perceives in open court,” Kise said.
Engoron was cool to the constitutional argument: “I don’t think it’s impinging on anybody’s First Amendment rights to protect my staff," he explained. But he agreed to examine the full remarks and reconsider the fine.
Engoron subsequently decided to stand by the penalty, citing “a brief but clear transition” between the mention of the person “alongside” the judge and the comment about the “discredited witness.”
“That was, to me, a clear transition from one person to another, and I think the person originally referred to was my clerk,” Engoron said.
Kise later suggested that Trump would appeal the fine. He asked for and received Engoron’s permission to have a photograph taken of the judge’s bench “for the record" to show the proximity of the judge's seat, his law clerk’s perch and the witness stand.
Kise's initial thought was to have the photograph taken while the bench was empty, but Engoron offered that it would be better to have people in the picture for scale.
“Mr. Kise, you’re about Michael Cohen’s size," Engoron said. "Why don’t you sit there?”
The lawyer demurred, quipping: “I’m not nearly as photogenic.”
Trump wasn't in court Thursday, having flown to Florida after attending Tuesday and Wednesday. He was previously in court for the trial’s first three days and returned for two days last week.
The trial involves a lawsuit that New York Attorney General Letitia James filed last year against Trump, his company and top executives. The Democratic attorney general said Trump and his business chronically lied about his wealth on financial statements given to banks, insurers and others. Trump denies any wrongdoing.
Before trial, Engoron found that Trump, chief financial officer Allen Weisselberg and other defendants committed years of fraud with the financial statements.
The civil trial concerns allegations of conspiracy, insurance fraud and falsifying business records. James is seeking $250 million in penalties and a ban on Trump doing business in New York.
Engoron already ordered that a court-appointed receiver take control of some Trump companies, putting the future oversight of Trump Tower and other marquee properties in question. An appeals court has blocked enforcement of that aspect of Engoron’s ruling, at least for now.
Trump and his two eldest sons, Eric and Donald Trump Jr., are expected to testify later in the trial. His daughter, Ivanka Trump, is fighting a subpoena for her testimony. Engoron will hold a hearing Friday morning before the resumption of testimony in an attempt to resolve that dispute.
Ivanka Trump was initially a defendant, but an appeals court dropped her from the case in June after finding that claims against her were outside the statute of limitations. Her lawyer is arguing that state lawyers failed to properly serve her subpoena and that she shouldn’t be forced to testify because she isn’t a party to the case and lives outside the court’s New York jurisdiction.
State lawyers countered in court papers Thursday that Ivanka Trump “was a key participant” in many events discussed in the case and “remains financially and professionally intertwined” with the family business and its leaders.