However offensive the comment that prompted the order was, it was constitutionally protected.
However offensive the comment that prompted the order was, it was constitutionally protected.
T he trial of New York attorney general Letitia James’s civil-fraud case against Donald Trump is predictably descending into chaos. We could not get through the second day of a trial expected to take up to three months without a constitutionally dubious gag order issued by Judge Arthur Engoron over a characteristically obnoxious social-media post by the former president.
What keeps trials orderly, what undergirds the authority of the trial judge, is the understanding that a legal proceeding is under way. In a proper legal proceeding, the judge projects probity, reinforcing the litigants’ understanding that it is in their self-interest to adhere to rules of law and decorum. The failure to do so earns the hostility of the court and triggers the punitive features of the process. Generally, bad behavior ends in both defeat and the imposition of penalties more severe than would otherwise have been imposed.
The problem in James’s case against Trump is that it is now a legal proceeding in name only. The state authorities — the prosecutor and the judge — have degraded the case into not merely a political exercise but a partisan persecution. The legal outcome is a foregone conclusion and the objective of the daily trial sessions is to inflict political damage on a figure abhorred by New York progressives and favored to be the Republican presidential nominee.
Am I exaggerating? You be the judge (believe me, this case could use a judge). James campaigned for office vowing to use the state’s law-enforcement apparatus to target Trump — to crawl through his life and his business, and get him on something. Not so long ago in these United States, a “show me the man and I’ll show you the crime” campaign would have been disqualifying for someone seeking a state-attorney-general post; in today’s New York, James won by nearly 30 points (and after suing Trump, in what was an unexpectedly tough election year for Democrats, she was nevertheless reelected by nearly ten points).
Before the lawsuit was filed, when Trump protested that James was singling him out for investigation — James having proudly boasted that she was singling him out for investigation — Engoron pooh-poohed the complaint, observing that Trump was “just a bad guy she should go after.” As soon as she sued, Engoron imposed a monitor on the Trump Organization. And just as the trial was about to start, Engoron issued his decision, holding that Trump had already lost the case and that the rest of this farce will be about how much James gets to run up the score in her quest for a $250 million disgorgement windfall.
The strategy of using the legal system as a partisan weapon works best when the targeted defendant plays along with the pretense that he’s participating in a solemn judicial proceeding. Trump won’t do that. He has concluded, entirely rationally, that it’s pointless. If he has any prayer of legal relief, it is in the eventual appellate process. In the interim, he is not going to regard the ongoing trial as anything but political combat, and he’s fighting it on those terms, in his inimitable way — meaning he intends to be seen as punching back harder than he’s being punched, even if doing so is self-destructive.
With the legal fix in, Trump has no incentive to adhere to normal legal rules and decorum. Instead, his incentive is to do everything in his power to convince Republican primary voters — whose support of him could ebb if it dawns on them that his mounting legal woes make him even more unelectable — that what’s now happening in Manhattan is a show trial orchestrated by his political enemies.
As a result, we are being treated — at the beginning and end of daily trial sessions, at some breaks in between, and in the constant thrum of social media — to diatribes against the elected-Democrat AG and the elected-Democrat judge. In a normal case, this would be shocking. In a real legal proceeding, a litigant would fear that provoking the judge’s wrath would lead to a contempt citation and a hostile jury. And mind you, in this case, there is no jury — the fact-finder is Judge Engoron.
Now we have the gag order.
Engoron is a club Democrat, an unabashed progressive, and an odd duck (“quirky,” concedes the New York Times) who involves his clerks in his court proceedings to an unusual degree. (A good judge projects authority and confidence — clerks are treated respectfully, but there’s no doubt about who is in charge and who is the help.) Because his dependence on his staff is on visual display, it is clear that Engoron relies heavily on Allison Greenfield, who has been his principal law clerk for years.
There is now a photograph making the rounds of Greenfield posing warmly with Senator Chuck Schumer at what is obviously a public event. And why wouldn’t there be? After all, there are probably more such photographs of Trump posing with allies, friends, and groupies than of any other man on the planet. But Schumer is the Democratic majority leader and has long dominated the New York legal community — he is the state’s most influential pol on judicial and law-enforcement appointments. He is also Trump’s mortal political enemy and an ardent admirer of Tish James — especially of her dogged pursuit of the former president.
So . . . well, you knew this was coming: Trump used his Truth Social platform to issue a post that states,
Schumer’s girlfriend, Alison [sic] R. Greenfield, is running the case against me. How disgraceful! This case should be dismissed immediately!!
Trump added a link to what is said to be Greenfield’s Instagram account.
The post provoked Schumer’s office to release an angry denial — he says he doesn’t even know Greenfield. Yesterday, at the start of the afternoon trial session, Engoron stated, “This morning, one of the defendants posted to a social-media account a disparaging, untrue post about a member of my staff.” On that premise, Engoron issued a narrow gag order barring Trump from making any public remarks about members of his staff. Violations could result in fines of $1,000 and even a 30-day jail stint — and you just know Trump figures, if he can bait Engoron into trying to incarcerate him (presumably along with his Secret Service detail), he will be declared the GOP presidential nominee by acclamation!
Trump’s remarks were offensive but constitutionally permissible. The First Amendment protects obnoxious speech, political speech, and obnoxious political speech. Trump is engaged in an election campaign in which his opponents, their supporters, and the media are uninhibited in terms of what they may say about the case against him. He has a right to argue that the state’s lawsuit is a political vendetta, and that the elected-Democrat judge is in on it. Trump is not a lawyer or a member of the bar subject to rules of professional ethics (which ban abusive conduct and reciprocating against judicial abuse). And in this case, there is no chance that Trump’s extrajudicial rants will sway the jury because there is no jury.
Let Trump rant. If Greenfield and Schumer want to avail themselves of the defamation laws, they have that right. I’d suggest that the best way to deal with Trump’s provocations is to ignore them rather than draw more attention to them by vehement denials. But what do I know? Suing Trump for defamation has proved so profitable for E. Jean Carroll that she’s done it a second time — and with the judge in that case already having ruled that Trump is liable, who knows if the second trial in January will top the first trial’s nearly $3 million in defamation damages?
It is also worth observing that Engoron is largely responsible for this circus — and not just because of his mugging for the cameras. A wise judge would take pains not to litter the record with his personal disdain for one of the parties. A wise judge who understood that there would have to be a trial on at least some of the claims in the case would not have issued a judgment order, on the eve of trial, informing Trump that he’d already lost. If you’re going to have a trial under the circumstances of this case, have the trial and then issue all the rulings at once, at the end — especially if it’s a bench trial in which the judge has to make all the findings anyway.
Not content with telling Trump he had no hope, Engoron’s 35-page opinion oozes with contempt for him. It is one thing to rule against a litigant; Engoron’s adjective-rich opus teems with scorn. The judge limns Trump as an inveterate liar (which may be true, but a pre-trial judicial opinion is not the place to say so); he fines Trump’s lawyers $7,500 apiece for making “bogus” and “obstreperous” contentions; he analogizes the defense to the Marx Brothers’ movie Duck Soup (“Who ya gonna believe, me or your own eyes?”); he adds — in case we hadn’t gotten the point — that he sees Trump as the inhabitant of “a fantasy world, not the real world”; he even gratuitously implies that the former president is guilty of foreign “influence buying” — an allegation that even James hasn’t leveled.
To be clear, I am not defending the practice of wildly exaggerating the value of one’s assets in business transactions. There are and should be laws against it. James appears to have solid evidence that Trump inflated his numbers and, if you have a big enough shovel to strip away the snark, Engoron’s opinion does a good job of marshaling that evidence. (As I’ve elsewhere explained, Trump’s oft-repeated claim that the judge has ludicrously understated the value of Mar-a-Lago is misleading.)
The point here is a fundamental tenet of Western law: The punishment must fit the crime. That principle is reflected in the Eighth Amendment’s prohibitions on excessive fines and punishments that are cruel and unusual. In recent years, the Supreme Court has, for example, invoked the Eighth Amendment in unanimously invalidating a state’s seizure of a $42,000 Land Rover SUV that a defendant had used to transport about $200 worth of heroin. The latter is no doubt a crime . . . but it’s a crime for which the maximum fine ($10,000) was four times less than the value of the SUV and for which the actual fine imposed ($1200) was about thirty times less. Patently, the punishment did not fit the crime. Moreover, the Court observed:
For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties. Excessive fines can be used, for example, to retaliate against or chill the speech of political enemies, as the Stuarts’ critics learned several centuries ago.
Let’s put aside Trump’s insistence that James is undervaluing his assets and that even the appraisals she relies on — which often feature significant differences in valuations of the same asset by various good-faith appraisers — illustrate that valuation is an inexact science, just as beauty is in the eye of the beholder. Trump’s business counterparties were sophisticated financial actors who dealt with him based on their own thoroughgoing appraisals. He as much as told them his valuations were sketchy, and they did not rely on those valuations. After doing their own due diligence, they made loans or gave coverage to him because they surmised that doing so would be profitable. And it was. As a result, James can point to no fraud victims. She claims to be suing on behalf of the people of New York State, but none of them is complaining — except in the politically opportunistic way the Stuarts complained.
You want to tell me that Trump ought to be fined, say, $1 million for a dozen years of knowing, significant misrepresentations? I could see that. To be honest, I’d still think it somewhat excessive given the fact that no harm was done. (The jury of New Yorkers that found Trump liable for sexual abuse in the aforementioned E. Jean Carroll case pegged the damages for that at $2.02 million.) Just as significant, New York routinely refuses to prosecute serious crimes. I wouldn’t quibble over a $1 million fine in light of the size of the transactions involved, but I’d still perceive the enforcement action against Trump as politically motivated, not a vindication of the rule of law.
Whether I’m right or wrong about that, though, we’re not talking here about $1 million. We’re talking about $250 million. We’re talking about putting out of business a multibillion-dollar conglomerate, a New York fixture for decades, in a case where no one was defrauded. We’re talking about a state trying to make sure Trump and his co-defendants (including his adult sons) can’t open a business or apply for a loan.
That’s not justice; it’s political aggression. And Trump is fighting it on those terms.