Part 2 of 2
2. Equitable considerations preclude a stay.
60. For similar reasons, the balance of the equities and the public interest tilt sharply against a stay. As an initial matter, petitioners have not identified any urgency requiring the extraordinary relief of a stay. To the contrary, they waited weeks to appeal these orders—the first order was issued on October 3 and the second one on November 3. Petitioners inordinate delay in seeking relief itself warrants denying their request.
61. In addition, as noted, in this high-profile trial, Supreme Court has been flooded with “hundreds of harassing and threat[en]ing phone calls, voicemails, emails, letters, and packages.” Ex. J, Nov. 3 Order at 2. There is a paramount interest in protecting the court’s staff, and the functioning of the State’s judiciary, especially in the “overheated” environment in which the trial is taking place. Ex. G, Oct. 20 Order at 1-2; Ex. F, Oct. 25 Tr. at 2372-73. Indeed, any actualized threat against the court’s staff would have dangerous ramifications for others—it would endanger security personnel charged with protecting the court and counsel, the news media, and the public, all of whom are present in the courtroom.
62. Notably, petitioners’ free-speech interests here, if any, are vanishingly slim. As explained, litigants and their attorneys do not have any unfettered right to attack the integrity of trial participants during an ongoing trial. And the exceedingly narrow scope of the October 3 and November 3 orders means that, at most, those orders have only “some minimal effect” on petitioners’ speech rights. City of Erie v. Pap’s A.M., 529 U.S. 277, 294 (2000). Indeed, petitioners may comment about Supreme Court, the judge, witnesses, or the substance of the proceedings. As the court made clear, “You can attack me, you can do whatever you want,” so long as the court’s staff are not discussed. Ex. F, Nov. 6 Tr. at 3484.
63. Petitioners argue (Pet. ¶¶ 6, 18, 109-14) that they have a continued interest in commenting about the principal law clerk to preserve the appellate record, but that argument is a red herring. As Supreme Court made clear, petitioners’ counsel “have had ample opportunity to make their record, and they have at length.” Ex. J, Nov. 3 Order at 2. Indeed, the court ruled affirmatively that their “record is now fully preserved for the duration of the proceeding” and for purposes of any appeal. Id. Petitioners have even filed a mistrial motion premised largely on their rehashed arguments about the principal law clerk, and the court issued a decision declining an order to show cause on that motion and explaining why it was meritless, without invoking the limitations of the October 3 and November 3 orders. See Ex. 3, Nov. 17 Declined Order to Show Cause. Neither petitioners nor their counsel have any cognizable interest in repeating vexatious statements and arguments that have already been considered and rejected.
C. The Court Should Deny Petitioners’ Request to Stay the October 20 and 26 Orders Sanctioning Mr. Trump.
1. Petitioners’ request to stay the sanctions orders is moot.
64. As an initial matter, petitioners’ stay request as to the October 20 and 26 orders should be denied as moot because Mr. Trump has already paid the monetary sanctions required by each order. See Ex. I, Letter from Alina Habba. A stay of those sanction orders would not provide Mr. Trump (or any of the other petitioners) with any effective relief because
Mr. Trump has already complied with these orders and there is therefore nothing left to stay. Petitioners request a stay of Supreme Court’s “findings” (Pet. at 57), but a stay is appropriate only to prevent “the enforcement of any determination under review” or “further proceedings,” C.P.L.R. 7805 (emphasis added). This Court does not sit in an advisory capacity, and should not issue a stay order that is purely academic and has no effect. See Matter of Bernstein Family Ltd. Partnership v. Sovereign Partners, L.P., 66 A.D.3d 1, 4 (1st Dep’t 2009).
2. Equitable considerations preclude a stay.
65. The balance of the equities and public interest weigh dispositively against a stay of the two orders imposing monetary sanctions on Mr. Trump.
Petitioners cannot show that they will suffer any irreparable harm without a stay of the sanction orders—a “sine qua non” for this relief. See DeLury, 48 A.D.2d at 405. Except for Mr. Trump, none of the petitioners was subject to the sanctions orders. They thus have not and will not suffer any harm from those orders. Nor do they have standing to assert harm on Mr. Trump’s behalf.
66. Nor has Mr. Trump himself shown that he will suffer irreparable harm without a stay.
Merely having to pay money is not an irreparable injury. Matter of J.O.M. Corp. v. Department of Health of State of N.Y., 173 A.D.2d 153, 154 (1st Dep’t 1991); see, e.g., Wall St. Garage Parking Corp. v. New York Stock Exch., Inc., 10 A.D.3d 223, 228-29 (1st Dep’t 2004). Here, if petitioners ultimately prevail on their petition, the money can be returned to Mr. Trump.
While Mr. Trump characterizes the $5,000 and $10,000 sanctions as “punitive” (Pet. ¶ 21), he does not claim an inability to pay the fine. Nor could he plausibly do so, when he has already paid the sanctions and when he is an avowed billionaire.
67. Moreover, the public interest warrants denying the stay and instead maintaining the status quo during the adjudication of the underlying petition. To the extent that petitioners think that a stay could result in a temporary return of the monetary payments from the New York Lawyers’ Fund for Client Protection—which reimburses clients who lost money because of a lawyer’s dishonest conduct—to Mr. Trump, such a result is plainly not in the public interest. And
a stay would improperly incentivize litigants or their counsel to not only engage in the type of inappropriate and harassing conduct at issue here, but also to engage in emergency stay practice in this Court merely to avoid paying sanctions during the short time required for the Court to adjudicate a matter on the merits.
3. There is no likelihood of success on the merits.
68. A stay is also unwarranted because petitioners are exceedingly unlikely to succeed on the merits of their challenge to the sanctions orders.
69. First,
petitioners’ arguments are based on the standards for imposing summary civil or criminal contempt (see Pet. ¶¶ 130-46), but Supreme Court did not hold Mr. Trump in contempt. Rather, the court appears to have imposed monetary sanctions under § 130-1.1 of the Rules of the Chief Administrator of the Courts and the court’s inherent authority. See Jones v. Camar Realty Corp., 167 A.D.2d 285, 286-87 (1st Dep’t 1990). In each sanctions order, the court stated that it was imposing a monetary sanction or fine on Mr. Trump; it did not say that it was holding Mr. Trump in contempt of court. See Ex. G, Oct. 20 Order at 2; Ex. H, Oct. 26 Order at 1 (describing October 20 order as imposing “nominal sanction”); id. at 2 (imposing “fine of $10,000” for second violation).
Indeed, the court contrasted its imposition of monetary sanctions with contempt, explaining that further violations of the October 3 order might subject Mr. Trump to contempt of court. See Ex. G, Oct. 20 Order at 2.
70. Supreme Court acted well within its broad discretion in imposing monetary sanctions for Mr. Trump’s misconduct. Under § 130-1.1,
the court has broad discretion to impose “financial sanctions against either an attorney or a party” in any civil action or proceeding, id. § 130-1.1(b), for engaging in “frivolous conduct,” id. § 130-1.1(a). Frivolous conduct is defined to include, inter alia, conduct undertaken primarily “to harass or maliciously injure another.” Id. § 130-1.1(c)(2); see Jones, 167 A.D.2d at 286. In determining whether conduct was frivolous, a court considers, among other issues, the circumstances under which the conduct took place, including “whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.” Rules of the Chief Administrator § 130-1.1(c). Courts may impose sanctions under § 130-1.1 either upon a motion or “upon the court’s own initiative, after a reasonable opportunity to be heard.” Id. § 130- 1.1(d). The form of the opportunity to be heard “shall depend upon the nature of the conduct and the circumstances of the case.” Id. The court may impose sanctions up to the amount of $10,000 for any single occurrence of frivolous conduct. Id. § 130-1.2.
71.
Courts have repeatedly determined that litigants or counsel who made harassing, inappropriate, or abusive statements have engaged in frivolous conduct warranting sanctions under § 130-1.1. As this Court has explained, “sanctions and costs have been imposed for insulting behavior to opposing counsel, baseless ad hominem attacks against the court and opposing party, and mischaracterization of the record.” Matter of Kover¸134 A.D.3d 64, 74 (1st Dep’t 2015). For example,
the Court of Claims imposed sanctions on a litigant who sent a letter impugning the integrity of court staff and opposing counsel by claiming, among other things, that the court’s chief clerk had refused to provide claimant’s motions to the judge; that the court stenographer had threatened claimant; and that an OAG attorney had offered to have sex with claimant. See Faison v. State of New York, 176 Misc. 2d 808, 809 (Ct. Claims 1998). The court explained that
such statements were sanctionable because they constituted “a groundless attack on the motives of the Chief Clerk” and were “plainly intended to harass and demean” opposing counsel. Id. at 810.
72. Similarly,
this Court and others have sanctioned litigants or attorneys for pursuing disrespectful ad hominem attacks against the integrity or independence of judges or the court. See, e.g., Nachbaur v. American Tr. Ins. Co., 300 A.D.2d 74, 75 (1st Dep’t 2002) (sanctions for “baseless, serious accusations against the motion court”); Jones, 167 A.D.2d at 286-87 (sanctions for ad hominem attacks on judges, including claiming they had never read the appeal papers or were illegally appointed). And
courts have sanctioned litigants for sending harassing and threatening communications to opposing counsel, see Jermosen v. State, 178 A.D.2d 810, 811 (3d Dep’t 1991),
or using disparaging terms or gestures during a deposition, see Principe v. Assay Partners, 154 Misc. 2d 702, 704 (Sup. Ct. N.Y. County 1992) (referring to counsel as “little lady” or “young girl”).
73. Moreover, to ensure their proper functioning,
courts “are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum in their presence, and submission to their lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution.” CDR Créances S.A.S. v. Cohen, 23 N.Y.3d 307, 318 (2014) (quoting Anderson v. Dunn, 19 U.S. 204, 227 (1821)). This “inherent authority,” which has been recognized in New York for over a century, incudes “all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective.” Matter of Diane D., 161 Misc. 2d 861 (Sup. Ct. N.Y. County 1994) (quotation marks omitted); see Jones, 167 A.D.2d at 287. Thus, while courts may not craft their own sanctions to address a systemic problem that requires a plenary rule,
they have inherent authority to impose sanctions when needed to control its order of business. Matter of Diane D., 161 Misc. 2d at 863-64; see Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 5-6 (1986) (concluding that systemic problem of frivolous filings required plenary sanctions rule, while acknowledging that “some matters . . . deal with the inherent nature of the judicial function”).
74. Here,
Mr. Trump’s inappropriate targeting of Supreme Court’s principal law clerk, using demeaning language and baselessly impugning her integrity, easily qualifies as sanctionable conduct under § 130-1.1 or the court’s inherent authority. Mr. Trump used disparaging and highly inappropriate language in his first social-media post, which personally identified the clerk, falsely claimed that she was “Schumer’s girlfriend,” and stated that it was “disgraceful” that she was purportedly “running the case against me.” Ex. 1, Truth Social Posts at 1.
These offensive remarks were plainly aimed at harassing and maligning the clerk, whether they “sprang from a misogynous or other maladapted point of view,” such as a tactic to make the principal law clerk uncomfortable or to anger the court. See Principe, 154 Misc. 2d at 708.
Indeed, the subsequent unprofessional and vexatious conduct of petitioners’ counsel, including continuing to comment about the principal law clerk throughout the trial and then filing a frivolous mistrial motion based nearly entirely on baseless claims about the principal law clerk, makes plain that petitioners—and, even more shockingly, their counsel—are harassing her as part of an improper tactic to disrupt trial and undermine the proceedings.
75. The surrounding circumstances further supported the imposition of sanctions.
The offensive targeting of the court’s staff member was not an isolated incident. The disparaging post was emailed to millions of recipients. On the same day, Mr. Trump again harassed and demeaned the court’s principal law clerk by stating to the media that “[t]he only one who hates Trump more is his associate up there, this person that works with him, and she’s screaming into his ear on almost every time we ask a question. It’s a disgrace.” See supra ¶ 9. And
Mr. Trump’s lawyers, who have ethical and professional obligations to the court, had already by that point begun making inappropriate comments about the court’s clerk—and continued doing so. See, e.g., Ex. F, Oct. 25 Tr. at 2308, 2416, 2419-20; id., Oct. 26 Tr. at 2470-71; id., Oct. 31 Tr. at 2911; id., Nov. 1 Tr. at 3061; id., Nov. 2 Tr. at 3396, 3398-99, 3404. Moreover,
Supreme Court imposed sanctions only after Mr. Trump disregarded warnings to stop the insulting and baseless targeting of the court’s staff.
76. There is no merit to Mr. Trump’s contention (see Pet. ¶ 12) that his reference to the person “sitting alongside” the judge was describing a witness rather than the principal law clerk. Supreme Court conducted a hearing and found Mr. Trump’s testimony on this score to be not credible—a factual finding that should be accorded deference. In any event, petitioners’ contention is implausible. The witness box is not located alongside where the judge sits but rather separated from where the judge sits. See Ex. H, Oct. 26 Order at 2. And most glaringly, one of petitioners’ own oft-repeated complaints, including in their petition here, is that the principal law clerk sits alongside the judge. See Pet. ¶ 11; e.g., Ex. F, Oct. 25 Tr. at 2308, 2416, 2419-20; id., Oct. 26 Tr. at 2470-71; id., Nov. 2 Tr. at 3398-99.
77. Contrary to Mr. Trump’s contentions (Pet. ¶¶ 155, 166), he received sufficient due process before sanctions were imposed. Section 130-1.1 authorizes the court to impose sanctions on its own initiative, after an opportunity to be heard that is reasonable under the circumstances— which Mr. Trump plainly received. See Rules of the Chief Administrator § 130-1.1(d); Matter of Gordon v. Marrone, 202 A.D.2d 104, 110 (2d Dep’t 1994). For example, before issuing the October 20 order, the court informed petitioners’ counsel that they should be prepared to address the offensive post that had remained on Mr. Trump’s campaign website, provided counsel with an opportunity to consult Mr. Trump, and allowed them to present their arguments about the issue on the record. There was no need for any further hearing or evidence (see Pet. ¶¶ 152, 164) because there was no dispute that Mr. Trump was ultimately responsible for the initial post or that it had remained on his own website for 17 days after the October 3 order. See Matter of Gordon, 202 A.D.2d at 111 (evidentiary hearing unnecessary prior to imposing sanctions when “pertinent material facts were not disputed”). And Mr. Trump similarly received ample opportunity to be heard before the October 26 sanctions order issued. For example, the court gave Mr. Trump time to confer with his counsel, allowed Mr. Trump’s counsel to present his argument on the record, and held a brief hearing at which Mr. Trump testified. See Ex. F, Oct. 25 Tr. at 2374, 2415-23. Mr. Trump thus had a reasonable opportunity to respond, and the court was entitled to find Mr. Trump’s response not credible.
78. Second, and in any event, the sanctions orders are also proper under Supreme Court’s authority to find litigants in civil contempt. Under the Judiciary Law, a litigant’s disobedience of the court’s lawful orders may constitute civil contempt. See Judiciary Law §753(A)(3) (civil contempt). Although petitioners’ focus almost exclusively on these and related statutory contempt provisions, they fail to recognize the full scope of the court’s authority. For civil contempt, courts also retain an “inherent authority to impose remedial fines for failure to obey their orders.” Baralan Intl. v. Avant Indus., 242 A.D.2d 226, 227 (1st Dep’t 1997); see Judiciary Law § 753(A)(8); People ex rel. Munsell v. Court of Oyer & Terminer of N.Y., 101 N.Y. 245, 249 (1886). This Court has indeed emphasized, as to civil contempt, that a “financial sanction to compel compliance [can be] a proper exercise of the court’s discretionary power.” Matter of People v. Trump, 213 A.D.3d 503, 504 (1st Dep’t 2023). This inherent civil-contempt authority to sanction disobedience of its judgments “is not exhausted until the purpose for which the judgment was rendered has been completely attained.” De Lancey v. Piepgras, 141 N.Y. 88, 96-97 (1894).
79. Here, Mr. Trump twice violated Supreme Court’s October 3 order. There is no dispute that the October 3 order expressed a clear and unequivocable mandate prohibiting further statements about the principal law clerk and that Mr. Trump knew about the October 3 order. See El-Dehdan v. El-Dehdan, 26 N.Y.3d 19, 29 (2015). And the court properly concluded that it appeared “with reasonable certainty, that the order ha[d] been disobeyed.” See id. (quotation marks omitted). Contrary to Mr. Trump’s contention that the sanctions were purely “punitive” and had to comply with the statutory procedures for criminal contempt (Pet. ¶ 21), the court issued the sanctions for the civil remedial purpose of trying to obtain Mr. Trump’s compliance with the October 3 order for the remainder of the trial, and thereby to protect the safety of the court’s staff and to prevent disruption to the orderly administration of the proceedings, which would prejudice OAG’s ability to proceed with their case. See Ex. G, Oct. 20 Order at 2; Ex. H, Oct. 26 Order at 1.
80. Finally, Mr. Trump’s arguments about any summary contempt findings is misplaced because, as explained, he received ample notice and opportunity to defend himself— including the ability to testify about the comment that resulted in the October 26 sanctions order. And the judge was not disqualified from ruling on the misconduct, as Mr. Trump’s comments involved the court’s staff rather than “disrespect to or vituperative criticism of the judge.” See Rules of App. Div., 1st Dept. (22 N.Y.C.R.R.) § 604.2(d)(1). Indeed, the October 3 order does not preclude Mr. Trump from speaking about the judge or Supreme Court.
WHEREFORE, this Court should deny petitioners’ motion to stay four orders of Supreme Court, dated October 3, 20, and 26, and November 3, 2023, while the Court resolves their article 78 petition.
Dated: New York, New York
November 22, 2023
By: ___________
Dennis Fan
Senior Assistant Attorney General
Office of the Attorney General
28 Liberty Street
New York, New York 10005
[email protected]
(212) 416-8921
***
EXHIBIT 1
Petitioner Donald J. Trump’s Truth Social Posts
October 3, 2023:
Truth Details
Donald J. Trump
@realDonaldTrump
Schumer's girlfriend, Alison R. Greenfield, is running this case against me. How disgraceful! This case should be dismissed immediately!! instagram.com/greenfield4civil...
Judicial Protest
@JudicialProtest
Why is Judge Engoron's Principal Law Clerk, Allison R. Greenfield, palling around with Chuck Schumer?
November 16, 2023:
Truth Details
2.4k Replies
Donald J. Trump
@realDonaldTrump
Judge Arthur Engoron has just been overturned (stayed!) by the New York State Appellate Division (Appeals Court), for the 4th TIME (on the same case!). His Ridiculous and Unconstitutional Gag Order, not allowing me to defend myself against him and his politically biased and out of control, Trump Hating Clerk, who is sinking him and his Court to new levels of LOW, is a disgrace. They are defending the Worst and Least Respected Attorney General in the United States, Letitia James, who is a Worldwide disgrace, as is her illegal Witch Hunt against me. The Radical and Unprecedented actions of Judge Engoron will keep BUSINESSES and JOBS forever out of New York State. I have done NOTHING WRONG, my numbers were low, not high, I have a COMPLETE DISCLAIMER CLAUSE, their Star Witness admitted he lied and made up this Fake case against me, and the the Attorney General used a "Get Trump" platform in order to run for A.G. & Governor (she failed!) . This wicked attack on Democracy must be ended, NOW!
8.06k ReTruths 26.1k Likes 11/16/23, 6:44 PM
November 18, 2023:
Truth Details
886 Replies
"Engoron's 'Co-Judge' Law Clerk, Allison Greenfield, Attended Anti-Trump Events Endorsing Biden & Tish James, Spurred on By Impeachment Leader Dan Goldman." thenationalpulse.com/ 2023/11/1 ...
The National Pulse+
Engoron's 'Co-Judge' Law Clerk, Allison Greenfield, Attended Anti-Trump Events
Allison Greenfield, law clerk to Judge Arthur Engoron, has been recently involved w ith leading anti-Trump organizations in New York City, and has even 2.56k ReTruths 5.81k Likes 11/18/23, 12:20 PM
Truth Details
628 Replies
Donald J. Trump
@realDonaldTrump
The Judge committed FRAUD in my Trial by valuing my assets at a tiny fraction of what they are really worth in order to make his FAKE CASE against me - And everyone, including his crooked and highly partisan Law Clerk, Allison Greenfield, and Racist A.G. Letitia James, knows it. The Judicial System in New York State is in chaos and disrepute over this horribly handled Persecution of a Political Opponent. The World is watching this illegal Witch Hunt. Engoron, James, and Greenfield should be sanctioned and prosecuted over this complete and very obvious MISCARRIAGE OF JUSTICE!!!
2.73k ReTruths 8.62k Likes 11/18/23, 2:45 PM
November 21, 2023
Truth Details
841 Replies
Donald J. Trump
@realDonaldTrump
A Rigged Trial going on against me by a corrupt N.Y. State Attorney General and an out of control Judge. They brought Values down to a FRACTION of what they are really worth, like Mar-a-Lago, and then called me a Fraud. They are the FRAUDSTERS, and the whole system is CORRUPT. I didn't even include one of my most valuable assets, BRAND VALUE, in my Financial Statements. Also, this Psycho Judge refuses to acknowledge the fact that I have a 100% Disclaimer Clause on the First Page of my Statements - "DO YOUR OWN DUE DILIGENCE." But it all doesn't matter, because regardless of what we say to show our TOTAL INNOCENCE, and it has been proven in many ways, and many times over, this political, Trump Hating Judge, together with his horrendous, seething with ANGER Law Clerk, with her illegal campaign contributions, will find me guilty as hell. NO JURY ALLOWED, A STATUTE NEVER USED FOR THIS BEFORE, A RIGGED TRIAL, A RACIST & CORRUPT ATTORNEY GENERAL, A TRUMP HATING JUDGE, ELECTION INTERFERENCE!
2.54k ReTruths 8.38k Likes 11/21/23, 6:37 PM
***
EXHIBIT 2
FILED: NEW YORK COUNTY CLERK 10/26/2023 03:34 PM INDEX NO. 452564/2022
NYSCEF DOC. NO. 1619 RECEIVED NYSCEF: 10/26/2023
In The Matter Of:
People of the State of New York v.
Donald J. Trump, et al - CORRECTED
October 3, 2023
So Ordered
AE 10/26/2023
HON. ARTHUR F. ENGORON J.S.C.
OCT 26 2023
Original File People v. Trump 10-3-2023 - CORRECTED.txt
FILED: NEW YORK COUNTY CLERK 10/26/2023 03:34 PM INDEX NO. 452564/2022
NYSCEF DOC. NO. 1619 RECEIVED NYSCEF: 10/26/2023
People of the State of New York v.
Donald J. Trump, et al - CORRECTED October 3, 2023
D. Bender - Direct by Mr. Wallace Page 267
1 through the document, please.
2 Mr. Bender, do you recognize this document?
3 A The document --
4 Q What's that?
5 A Repeat the question, please?
6 Q Do you recognize this document?
7 A Yes, I do.
8 Q What is this document?
9 A This is the representation letter for the DJT -- the
10 compilation of the personal financial statement of Donald J.
11 Trump, as of June 30, 2020.
12 MR. WALLA CE: If we could go to the bottom of
13 this document.
14 Q Do you recognize the signature on the left hand side
15 of the screen?
16 A Yes, I do.
17 Q Whose signature is that?
18 A It's Allen Weisselberg.
19 Q And in what capacity is Mr. Weisselberg signing this
20 document?
21 A Chief Financial Officer and Trustee of the Donald J.
22 Trump Revocable Trust.
23 Q And do you recognize the signature on the right hand
24 side?
25 A Yes, I do.
D. Bender - Direct by Mr. Wallace Page 268
1 Q Whose signature is that?
2 A That's Donald J. Trump, Junior's signature.
3 Q And in what capacity is he signing this document?
4 A Executive Vice President of the Trump Organization,
5 and Trustee of the Donald J. Trump Revocable Trust.
6 MR. WALLA CE: Your Honor, we would ask that this
7 document be entered into evidence?
8 THE COURT: Granted. It's in evidence.
9 (Whereupon, Plaintiffs Exhibit 855 was received
10 in evidence.)
11 Q And Mr. Bender, would Mazars have issued the 2020
12 Statement of Financial Condition if Mr. Weisselberg and
13 Mr. Trump did not offer these representations?
14 A No, we would not have.
15 Q Would Mazars have issued the 2020 Statement of
16 Financial Condition if it knew that any representations
17 contained in this letter were false?
18 A No, we would not have.
19 Q Mr. Bender, did you work on Statements of Financial
20 Condition for Mr. Trump in any later years?
21 A No, we did not.
22 Q Why not?
23 A Mazars disengaged from the Trump Organization.
24 Q And did you have any involvement in the decision to
25 disengage from the Trump engagement?
D. Bender - Direct by Mr. Wallace Page 269
1 A No, I did not.
2 Q After the time that you disengaged from the Trump
3 engagement, did you have any personal contact with Donald J.
4 Trump?
5 A No, I did not.
6 Q Before seeing him in the courtroom the last two days,
7 when was the last time you saw Donald J. Trump in person?
8 A It was before Covid. It was December, 2019.
9 Q And do you remember in what context that was?
10 A Yes. Ms. Trump had invited by son to a
11 Christmas party for children, to make ornaments, and I had to
12 get some papers signed by Mr. and Ms. Trump.
13 Q Since that meeting, did you have any conversations
14 with Mr. Trump?
15 A No, I have not.
16 Q Did you have any conversations with Mr. Trump about
17 the decision by Mazars to end the engagement with the Trump
18 Organization?
19 A No, I did not.
20 Q Did you have any in-person meetings with Mr. Trump
21 about the decision by Mazars to end to the relationship with the
22 Trump Organization?
23 A No, I did not.
24 MR. WALLACE: Your Honor, we reserve our right to
25 re-direct; or cross, if they go beyond the scope of his
D. Bender - Direct by Mr. Wallace Page 270
1 testimony. We have no more questions at this time, of
2 Mr. Bender.
3 THE COURT: Mr. Kise, do you want five minutes to
4 cross exam?
5 MR. KISE: Do we want to -- just, probably better
6 to just take our break.
7 THE COURT: I thought you would say that. Give
8 me one second.
9 (Whereupon, there was a pause in the
10 proceedings.)
11 THE COURT: Okay. We are going to resume at
12 2:15. Have a good lunch, everybody.
13 (Whereupon, a recess was taken.)
14 * * * * * *
15 THE COURT: Welcome back, everyone.
16 This morning, one of the defendants posted, to a
17 social media account, a disparaging, untrue and personally
18 identifying post about a member of my staff. Although I
19 have since order the post deleted, and apparently it was,
20 it was also emailed out to millions of other recipients.
21 Personal attacks on members of my court staff are
22 unacceptable, inappropriate, and I will not tolerate them,
23 under any circumstances. Yesterday, off the record, I
24 warned counsel of this, and this was disregarded. My
25 warning was disregarded.
Proceedings Page 271
1 Consider this statement a gag order forbidding
2 all parties from posting, emailing, or speaking publicly
3 about any members of my staff. Any failure to abide by
4 this directive will result in serious sanctions. I hope
5 I've been very clear.
6 Okay. Let's get Mr. Bender back.
7 MR. KISE: While we're waiting, Judge, I'll just
8 observe, this will be better for me because I don't have to
9 stand up and object when there's a document, since it's
10 cross examination.
11 THE COURT: Are we up to cross?
12 MR. SUAREZ: Your Honor, I'll take the
13 opportunity to introduce myself My name is Jesus Suarez.
14 Thank you for admitting me, pro hac vice. I practice with
15 Mr. Kise, in Florida.
16 THE COURT: Of course. I remember the
17 application.
18 MR. SUAREZ: I don't speak as nicely as he does.
19 THE COURT: Well, almost nobody does, so --
20 MR. SUAREZ: Is my mike on? Now my mike is on.
21 THE COURT: Is he as good in the office as he is
22 in court?
23 MR. SUAREZ: He is certainly as charming in the
24 office as he is in court, but he almost never picks up
25 lunch. I don't know what that's about.
D. Bender - Cross by Mr. Suarez Page 272
1 That was a joke. Mr. Kise picks up lunch.
2 MR. KISE: You are forgetting all the dinners.
3 THE COURT: They don't laugh at mine, either, so.
4 (Whereupon, the witness resumed the witness
5 stand.)
6 THE COURT: I'll remind the witness, as usual,
7 that he is still under oath.
8 THE WITNESS: Thank you.
9 THE COURT: Counsel, please proceed.
10 CROSS EXAMINATION
11 BY MR. BENDER:
12 Q Mr. Bender, good afternoon.
13 A Good afternoon.
14 Q We have met before?
15 A Good afternoon.
16 THE COURT: That's a question. Have you met
17 before?
18 Q We have met before. We met in April of 2023, when I
19 took your deposition on behalf of the defendants. Do you
20 recall, sir?
21 A Yes, sir.
22 Q Okay. Mr. Bender, you have been up here testifying
23 for the last day about the Statements of Financial Condition of
24 the 45th President of the United States. Is that correct?
25 A Yes, sir.
D. Bender - Cross by Mr. Suarez Page 273
1 Q And Mr. Bender, preparing the president's Statements
2 of Financial Condition, that was a big job; wasn't it,
3 Mr. Bender?
4 A It wasn't a big job. It was part of my normal
5 engagement.
6 Q Part of your normal engagement, I see. In 2011 alone,
7 the first Statement of Financial Condition that the Attorney
8 General had you talk about, the president had over $258 million
9 in cash, Mr. Bender. You don't think that's a significant
10 engagement?
11 A No, sir.
12 Q Okay. The president had a company with a brand value
13 of over $10-, maybe even $20 billion, Mr. Bender. That, for
14 you, wasn't a significant engagement?
15 A No, sir.
16 Q Okay. Now, is that because you were the in-house
17 accountant at the Trump Organization for over 30 years,
18 Mr. Bender?
19 A I wasn't the in-house accountant.
20 Q Okay. So who was?
21 A The in-house accountant?
22 Q Yes.
23 A Mr. McConney, Mr. Weisselberg. They were the in-house
24 accountants.
25 Q Mr. McConney. Mr. McConney worked with you at Spahr
D. Bender - Cross by Mr. Suarez Page 274
1 Lacher?
2 A Yes, he did.
3 Q May have been responsible for giving you the name Doc?
4 A He wasn't, but he kept it going.
5 Q Did they call you Doc because you were good at
6 documented transactions? That was the Doc?
7 A No.
8 Q It's a cute nickname.
9 Was Mr. Weisselberg an accountant?
10 A He was an accountant.
11 Q Mr. Weisselberg is a CPA?
12 A No. He is not a CPA.
13 Q Mr. McConney is a CPA?
14 A No. Mr. McConney is not a CPA.
15 Q Okay. So who was the in-house accountant at the Trump
16 Organization, Mr. Bender?
17 A Mr. Weisselberg, and his team.
18 Q All right. You did work for the Trump Organization
19 for over 35 years; did you not, Mr. Bender?
20 A Excuse me?
21 Q You did work for the president and his company, the
22 Trump Organization, for over 35 years?
23 A Approximately.
24 Q Approximately. In fact, you came to work with the
25 Trump Organization through a gentlemen named Mr. Mitnick; didn't
***
EXHIBIT 3
PRESENT: Engoron
J.S.C.
At I.A.S. Part 37 of the Supreme Court of the State of New York, held in and for the County of New York, at the Courthouse located at 60 Centre Street, New York, New York, on the 17 of November, 2023.
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PEOPLE OF THE STATE OF NEW YORK, BY LETITIA JAMES, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Plaintiff,
-v-
DONALD J. TRUMP, DONALD TRUMP JR., ERIC TRUMP, ALLEN WEISSELBERG, JEFFREY MCCONNEY, THE DONALD J. TRUMP REVOCABLE TRUST, THE TRUMP ORGANIZATION INC. TRUMP ORGANIZATION LLC DJT HOLDINGS LLC, DJIT HOLDINGS MANAGING MEMBER, TRUMP ENDEAVOR 12 LLC, 401 NORTH WABASH VENTURE LLC, TRUMP OLD POST OFFICE LLC 40 WALL STREET LLC SEVEN SPRINGS LLC.,
Defendants.
INDEX NO. 452564/2022
Engoron, J.S.C.
ORDER TO SHOW CAUSE
UPON reading and filing the annexed Affirmation of Clifford Robert, dated November 15, 2023 and the exhibits annexed thereto; the Affirmation of David Demarest, dated November 14, 2023 and the exhibits annexed thereto, and the Memorandum of Law in Support of a Mistrial, dated November 15, 2023; and upon all the pleadings and proceedings heretofore had herein, and sufficient cause having been shown,
LET Plaintiff People of the State of New York by Letitia James, Attorney General of the State of New York, by her attorneys, show cause before this Court on IAS Part 37, Room 418 of Supreme Court of the State of New York, County of New York, located at 60 Centre Street, New York, New York on the_ day of _ _ 2023, at __ o'clock, or as soon thereafter as counsel may be heard, why an order should not be made and entered:
(a) granting a mistrial pursuant to CPLR § 4402; and
(b) granting such other and further relief as this Court deems just and proper. Sufficient cause therefore appearing, it is
ORDERED that opposition papers, if any, are to be served on Defendants' counsel via e-filing on or before the_ day of November 2023; and it is further
ORDERED that reply papers, if any, are to be served on Plaintiff's counsel via e-filing on or before the_ day of November 2023; and it is further
ORDERED that service of a copy of this Order to Show Cause and the papers upon which it is based upon Plaintiff be made on or before November _ , 2023, by e-filing same shall be deemed good and sufficient service thereof.
Decline to sign for the reasons stated in the order annexed hereto.
AE 11/17/2023
HON. ARTHUR F. ENGORON J.S.C. NOV 17 2023
***
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. ARTHUR F. ENGORON
PEOPLE OF THE STATE OF NEW YORK, BY LETITIA JAMES, ATTORNEY GENERAL OF THE STATE OF NEW YORK,
Plaintiff,
-v-
DONALD J. TRUMP, DONALD TRUMP JR., ERIC TRUMP, ALLEN WEISSELBERG, JEFFREY MCCONNEY, THE DONALD J. TRUMP REVOCABLE TRUST, THE TRUMP ORGANIZATION INC. TRUMP ORGANIZATION LLC DJT HOLDINGS LLC, DJIT HOLDINGS MANAGING MEMBER, TRUMP ENDEAVOR 12 LLC, 401 NORTH WABASH VENTURE LLC, TRUMP OLD POST OFFICE LLC 40 WALL STREET LLC SEVEN SPRINGS LLC.,
Defendants.
PART: 37
INDEX NO. 452564/2022
MOTION DATE 11/15/2023
MOTION SEQ. NO. 036
ORDER DECLINING TO SIGN DEFENDANTS' PROPOSED ORDER TO SHOW CAUSE
The following e-filed documents, listed by NYSCEF document number (Motion 036) 1633, 1634, 1635, 1636, 1637, 1638 were read on this application for MISTRIAL
This Court declines to sign defendants' proposed order to show cause seeking permission to move, pursuant to CPLR 4402, for a mistrial.
CPLR 4402 provides that "[a)t any time during the trial, the court, on motion of any party, may order a continuance or a new trial in the interest of justice on such terms as may be just."
Defendants' supporting papers argue a mistrial is necessary because, essentially, the Court has exhibited bias: (1) directly, as l publish a high school alumni newsletter with links to articles referencing this case; and (2) indirectly, through my Principal Law Clerk, Allison Greenfield, whom they allege has violated 22 NYCRR 100.5(C)(2) by exceeding the permissible amount of political donations in a calendar year.
As an initial matter, to the extent that defendants' arguments rely on alleged "facts" based on editorial opinions that denounce plaintiffs case (NYSCEF Doc. No. 1634 at 4-5), such opinions are irrelevant and of no evidentiary value.
Equally irrelevant is the "expert affirmation" of yet another retired judge, David Demarest, who states that he was "retained as an expert" by defendants' counsel to opine on the legal basis for a mistrial. (NYSCEF Doc. No. 1635). As I explained in my September 26, 2023 Decision and Order granting partial summary judgment, legal arguments are for counsel to make, and for judges to decide. Therefore, such expert affidavit is neither necessary not permitted. "The rule prohibiting experts from providing their legal opinions or conclusions is 'so well-established that it is often deemed a basic premise or assumption of evidence law-a kind of axiomatic principle."' In re Initial Pub. Offering Sec. Litig., 174 F Supp 2d 61, 64 (SD NY 2001) ( citing Thomas Baker, The Impropriety of Expert Witness Testimony on the Law, 40 U Kan LRev 325, 352 (1992) (precluding "expert affidavits" on the law); accord, Note, Expert Legal Testimony. 97 Harv LRev 797, 797 (1984) ("it remains black-letter law that expert legal testimony is not permissible"). This Court has already cautioned defendants' counsel against submitting "expert opinions" on purely legal issues. Moreover, as detailed herein, former Judge Demarest's "expert opinion" incorrectly summarizes the relevant law and fails to address all applicable governing ethical guidelines.
Defendants correctly assert that 22 NYCRR 100.5(C)(2) generally limits to $500 the political contributions that members of a judge's staff may make annually. However, defendants, and their "legal expert," fail to cite the applicable unambiguous ethical guidelines for candidates for judicial office, found in Judicial Ethics Opinion 98-19.1 Since 2020, my Principal Law Clerk has been pursuing elected judicial office, as the governing ethical guidelines for New York State law clerks expressly contemplate and permit. Id. Indeed, Judicial Ethics Opinion 98-1 9 clearly states: "the $500 limitation on political contributions does ' not apply to an appointee's contributions to his or her own campaign.' Nor would there be such a monetary restriction on the purchasing of tickets to political functions. "' Id.
When deducting the price of tickets to political functions that my Principal Law Clerk attended from all the contributions to which defendants cite, the remainder is still well below the ethical and legal permissible annual limit. Defendants further attempt to argue that since my Principal Law Clerk attended events sponsored by certain organizations, also legally and ethically permitted, each and every separate action and position by those organizations should be imputed to her, and by proxy, to me. Such arguments are nonsensical; and in any event, they are a red herring, as my Principal Law Clerk does not make rulings or issue orders - I do.
As I have explained on the record in open court, I have, pursuant to 22 NYCRR 100.3(B)(6)(6)(c) and Advisory Opinion 07-04,2 an absolute unfettered right to consult with my law clerks in any way, shape, or form I choose. 22 NYCRR 100.3(B)(6)(6)(c) ("A judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges").
However, as I have made clear over the course of this trial, my rulings are mine, and mine alone. There is absolutely no "co-judging" at play. That I may consult on the trial record, the law, and the facts, before issuing any respective ruling is within my absolute discretion and is in no way evidence that the final decisions are anyone's but mine. Accordingly, there is no factual or legal basis for a mistrial based on these allegations against my Principal Law Clerk.
To the extent defendants argue that I have exhibited bias by stating in Court that "I'm not here to hear what [Donald Trump] has to say," such argument is disingenuous and made in bad faith, as defendants omitted what I said immediately after that sentence, which is "I'm here to hear him answer questions." NYSCEF Doc. No. 1637 at 3510. Indeed, those are precisely the roles of the witness and the finder of fact.
Defendants also take issue with my publishing my high school alumni association newsletter, alleging that it was inappropriate to include links to articles referencing this case, as it creates an appearance of impropriety.
In 2007, I co-founded The Wheatley School Alumni Association3 and began publishing the Association Newsletter. All issues are free of charge, reach approximately 4,700 email addresses, and contain no advertising. They contain news about the school, its faculty, and primarily, its graduates. When an online publication mentions a graduate, including myself, I include an excerpt and/or a link, usually both. Consequently, I have been the subject of entries concerning this case due to its undeniable newsworthiness.
In fact, because of my job, I have been the subject of a fair amount of news coverage over approximately the past decade. However, I neither wrote nor contributed to any of the articles on which defendants focus, and no reasonable reader could possibly think otherwise.
Many years ago, a legal ethics lecturer told a group of jurists, of which I was one, that "judges do not lose their individual identities or personalities just because they are judges." A significant part of my personality and identity is as a graduate of an institution that I admire, who has taken on the time-consuming but gratifying task of keeping its alumni connected and informed. None of this has anything to do with, much less does it interfere with, my presiding fairly, impartially, and professionally over the instant dispute, which I have now been doing for more than three years, and which I intend to do until its conclusion.
Plaintiff has advocated for a full briefing schedule, emphasizing that although it believes defendants' motion is without merit, it also believes briefing would economize the timing and effects of any appeal. However, in good conscience, I cannot sign a proposed order to show cause that is utterly without merit, and upon which subsequent briefing would therefore be futile.
The Court has considered defendants' remaining arguments, including, but not limited to defendants' assertions that the Court's evidentiary rulings are per se evidence of bias as they allege there are more rulings in favor of plaintiffs than defendants, and finds them to be similarly without merit and/or non-dispositive. I stand by each and every ruling, and they speak for themselves. Finally, as I have made abundantly clear, the basis for overruling objections to allegedly "time-barred evidence" is legally sound, as there is a statute of limitations on claims, not evidence.
Accordingly, this Court hereby declines to sign defendants' proposed order to show cause seeking permission to move, pursuant to CPLR 4402, for a mistrial.
NOV 17 2023 HON. ARTHUR F. ENGORON
A
DATE: 11/17/2023
_______________
ARTHUR F. ENGORON, J.S.C.
_______________
Notes:
1 Judicial Ethics Opinion 98-19, available at
https://www.nycourts.gov/legacyhtm/ip/ judicialethics/opinions/98-19.htm.
2 "The relationship between a judge and his/her law clerk is one of particular trust and confidence. Although a judge and his/her law clerk are of course not 'partners,' the two engage in the kind of professional interchange that might be found between long-time colleagues in a law firm." Advisory Opinion 07-04, available at
https://www.nycourts.gov/ipjudicialethi ... /07-04.htm.
3 The Wheatley School, founded in 1956, is an esteemed public school in Old Westbury, New York.
