Trump's Legal Team May Have Violated Gag Order With Mistrial Motion

Former President Donald Trump's legal team has filed a motion for a mistrial in his civil fraud trial, while possibly violating a gag order from New York State Supreme Court Justice Arthur Engoron in the process.

Lawyers for the former president filed a 30-page motion with the court on Wednesday requesting that Engoron declare a mistrial to "salvage what is left of the rule of law" following alleged anti-Trump bias during the trial and "astonishing departures from ordinary standards of impartiality."

Lisa Rubin, legal analyst for MSNBC, suggested that the filing of the motion in the court's public docket could come back to bite Trump's legal team in a post to X, formerly Twitter. She pointed out that the motion repeatedly refers to Engoron's relationship to his chief law clerk, something that the ex-president's lawyers were explicitly forbidden from discussing publicly in a gag order issued on November 3.

Rubin also noted that Engoron had told Trump's counsel that he did not want to hear their mistrial motion "in front of hundreds of people," asking them to instead submit a filing that would show cause for a hearing on the matter. She said that Trump lawyer Alina Habba promised to deal with the mistrial motion "in a delicate manner" during the hearing.

"I understood [Engoron] to be instructing Trump's team to submit their proposed order and motion directly to his chambers," Rubin wrote. "That way, he could determine whether to hear the motion publicly and/or whether Trump's supporting papers, which, as filed, seem to violate the very gag order they are protesting, should be redacted or sealed."

Rubin went on to say that "Engoron met with each side privately yesterday" and it was possible that the motion was "filed today with his knowledge and permission."

"But right now, without further clarification, it appears they publicly filed their mistrial motion, brief, and supporting affidavits without such permission—and in a way that likely triggers another violation of the same gag order they claim exemplifies Engoron's bias," she added.

Los Angeles defense attorney Matthew Barhoma told Newsweek that determining whether or not the motion for a mistrial violates the gag order was "a tricky analysis," pointing out that Trump's lawyers could be hit with "enormous sanctions" if Engoron decides that it does.

"On one hand, you have a litigant who is bringing his claims to bar in effort to seek a mistrial, and on the other is a court order with long-standing rationale as to why it went into effect—Donald Trump can be a polarizing party known to campaign with attacks against anyone he deems to be an adversary," Barhoma said.

He added that "in Trump's defense," Engoron's order largely covers "the court's conduct in a newsletter or items the court published online," while photos of the justice and his clerk within the motion "depict real-life instances of things that occurred in open court" and are "not confidential."

"Justice Engoron will have a wide latitude to determine whether the motion violated the court order," he added. "And depending on that, Justice Engoron can impose enormous sanctions, including assessing the potential of terminating sanctions, if he deems fit."

Former U.S. Attorney Barbara McQuade told Newsweek via email that she thought "the motion technically violates the order" and that its content concerning the clerk might "invite threats and harassment against her."

"The judge may wish to take the motion seriously to avoid any appearance of bias," McQuade said. "The arguments in the motion are frivolous, and seem designed to create the public impression that the court is biased against Trump so that any adverse outcome can be explained away as the product of an unfair process."

"To avoid playing into that narrative, the judge may want to decide the motion in open court and explain his reasoning," she continued. "Any consequences for allegedly improper political donations by the clerk should be addressed as internal discipline, not as a windfall for a defendant."

In the gag order, Engoron wrote that "all counsel are prohibited from making any public statements, in or out of court, that refer to any confidential communications, in any form, between my staff and me," while warning that "serious sanctions" would be imposed if the order is violated.

The mistrial motion repeatedly accuses Engoron and his clerk of being biased and partisan, with Trump's lawyers pointing out the clerk's donations to candidates and causes associated with the Democratic Party.

The motion also accuses Engoron of allowing "co-judging" in his courtroom due to the clerk sitting next to him and his pausing "to consult with her on the bench" or to receive "her contemporaneous written notes."

Additionally, Trump's lawyers acknowledged that the motion itself could be seen as a violation of the gag order. They wrote that Engoron had allowed the motion to be made without violating the gag order following a "confidential communication" with the clerk, under the condition that the motion was "in writing."

"Imposing limits on a party and/or counsel's ability to address in court the issues herein presented is simply not justifiable and certainly not consistent with the avoidance of an appearance of impartiality," the lawyers wrote.

"The right to a fair trial is sacrosanct," they continued. "Thus, anything that at all infringes, potentially or otherwise, on such a right must and should be questioned in an open and public forum."

Update 11/16, 12:11 p.m. ET: This article has been updated to include a statement from former U.S. Attorney Barbara McQuade.