A gag order that barred Donald Trump from commenting about court personnel in his New York civil fraud trial after he maligned a key staffer was paused Thursday by an appellate judge who raised concerns that it violated the former president's free speech rights.
Judge David Friedman, of the state’s intermediate appeals court, issued what’s known as a stay — suspending the gag order and allowing Trump to freely comment about court staff while a longer appeals process plays out. Friedman’s ruling also applies to Trump’s lawyers and others involved in the case.
The trial judge, Arthur Engoron, imposed the gag order on Trump after the former president made a disparaging social media post about Engoron’s court clerk on trial’s second day, Oct. 2. Engoron later fined Trump $15,000 for violations and expanded the order to include his lawyers after they questioned the clerk’s prominent role in the courtroom.
Friedman questioned Engoron’s authority to police Trump’s speech outside the courtroom — such as his frequent gripes about the case on social media and in comments to TV cameras in the courthouse hallway. He acknowledged that judges often issue gag orders, but said they're mostly used in criminal cases in which there's a fear that comments about the case could influence the jury.
Trump's lawyers filed a lawsuit against Engoron late Wednesday challenging the gag order as an abuse of power. Friedman scheduled an emergency hearing Thursday afternoon around a conference table in a state appellate courthouse a couple of miles from where the trial is unfolding.
Trump attorney Alina Habba indicated after Friedman ruled that she has no plans to advise the former president to stay quiet about the clerk.
"I don't see a reason for restrictions because Ms. James is continuing to disparage my client," said Habba, referring to New York Attorney General Letitia James, who is prosecuting the case. Habba added that Trump hasn't threatened the clerk’s safety.
"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," Habba said.
Trump and his lawyers have repeatedly put the law clerk, Allison Greenfield, under a microscope during the trial. They contend that the former Democratic judicial candidate is a partisan voice in Judge Arthur Engoron's ear — though he also is a Democrat — and that she is playing too big a role in the case involving the former Republican president.
Engoron has responded by defending her role in the courtroom, ordering participants in the trial not to comment on court staffers and fining Trump a total of $15,000 for what the judge deemed violations. Engoron went on last week to prohibit attorneys in the case from commenting on “confidential communications” between him and his staff.
Trump's lawyers — who, separately, sought a mistrial Wednesday — contend that Engoron's orders are unconstitutionally suppressing free speech, and not just any free speech.
"This constitutional protection is at its apogee where the speech in question is core political speech, made by the front runner for the 2024 Republican presidential nomination, regarding perceived partisanship and bias at a trial where he is subject to hundreds of millions of dollars in penalties and the threatened prohibition of his lawful business activities in the state," they wrote in a legal filing.
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