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Donald Trump's application for a mistrial in his New York fraud case has little chance of success, legal experts have said.
Trump filed the much-anticipated 30-page motion to Judge Arthur Engoron on Wednesday, alleging that Engoron is biased and can be seen reading notes from his clerk before making major rulings in the case.
Engoron has twice fined the former president for commenting publicly about his principal clerk, Allison Greenfield, but Trump is free to criticize her in legal submissions.
The motion names Greenfield eight times, and refers to the "Principal Law Clerk" 44 times. Two photos of Engoron and Greenfield together on the bench taken during the trial were also included.
In their mistrial motion, Trump's lawyers allege Greenfield is "co-judging" the case.
"Before the court rules on most issues, the court either pauses to consult with her on the bench or receives from her contemporaneous written notes," the motion states.
This follows a heated exchange between Engoron and Trump's chief lawyer, Christopher Kise, in which Kise accused him of consulting Greenfield's witness notes during the trial.
On Nov. 2, defense attorney Kise said that Greenfield was passing notes to the judge when Trump lawyer Jesus Suarez was questioning a witness.
"Every time Mr. Suarez was making a point and there was a dialogue, there would be notes passed to you," Kise said. "When the attorney general was speaking, there would be no notes passed to you."
Engoron pounded the table in anger, and noted for the record that he was doing so.
"That's—I'm going to pound the table—–confidential communications from my principal law clerk. I have an absolute right to it and you don't have any right to see it or question it," Engoron said.
Engoron then barred Trump's attorneys from referring to the notes in oral arguments, but they are still free to mention them in written submissions.
Newsweek sought email comment on Thursday from Trump's attorney.
New York Attorney General Letitia James is suing Trump and his company, The Trump Organization, based on alleged fraud in Trump's property evaluation statements, through which he obtained bank loans. In September, Engoron ruled that Donald Trump, Eric Trump and Donald Trump Jr., committed fraud in their property evaluations.
Trump, front-runner in the polls for the 2024 Republican presidential nomination, testified on November 6 and has denied any wrongdoing, calling the trial politically motivated.
The court will decide on six other accusations, including falsifying business records, insurance fraud, and conspiracy claims. Engoron himself will rule on the charges, as Trump's legal team did not opt for a jury trial.
James accused Trump of trying to cover up lies by seeking a mistrial. "Once again, Donald Trump is trying to dismiss the truth and the facts, but the numbers and evidence don't lie," she said in a statement. "Trump is now being held accountable for the years of fraud he committed and the incredible ways he lied to enrich himself and his family. He can keep trying to distract from his fraud, but the truth always comes out."
Gregory Germain, Syracuse University law professor, told the liberal-leaning Salon news site that he would be shocked if Trump's mistrial motion succeeded.
"Trump's strategy of attacking the judge because the judge is ruling against him, as he does in almost every case brought against him, is a terrible strategy," Germain said. "I would be shocked if these allegations have any impact at all on the trial or on an appellate court."
The purpose of Trump's allegations is "entirely political," since he is hoping to obtain public support, he added.
However, Germain said that Trump does have a point that the New York attorney general's case against him is political as it would not have been brought against an unknown real estate developer.
"There needs to be an innocent victim or potential innocent victims for the AG to take action," Germain said. "So there is some resonance to his arguments about being targeted for political reasons. But there is also no question that he grossly overvalued his properties. Whether that constitutes fraud...is a legitimate legal question for appeal. But the courts will base their decisions on evidence and the law, and not on allegations and dissatisfaction with the results of the trial," he said.
A California civil rights attorney, V. James DeSimone, told Salon that Trump's team has not presented any facts or evidence to prove they have been treated unfairly in court.
If a judge's clerk passing several notes to him during the trial last week is grounds for a mistrial, no trial would ever be decided by a jury, he added.
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more