The New York County Lawyers Association Statement on Justice Engoron and the Trump Gag Order

The New York County Lawyers Association has a long history of defending judges against unfair and unwarranted attacks in the media – a function we perform because ethical rules applicable to sitting judges prevent them from defending themselves. As the Trump real estate valuation fraud trial enters its fourth day, we are compelled to speak in defense of Hon. Arthur F. Engoron, who has been subject to repeated attacks by former President Donald Trump.

We have all seen former President Trump’s invective on Truth Social and in press conferences he holds in virtually every recess and break, as well as before and after the trial day. On Tuesday Justice Engoron issued a “gag” order that prohibits Trump from criticizing courtroom staff; this was, unfortunately, necessary to protect their safety in our country’s overheated political environment. We respect Justice Engoron’s efforts to protect loyal and hardworking staff; however, unfortunately the “gag” order doesn’t eliminate the danger. Once Trump’s attacks on the staff (in particular, on Justice Engoron’s law clerk) were posted on the internet, they entered the public domain forever—even though they were later deleted. We have little doubt that former President Trump knows and fully understands all of this.

Because Justice Engoron understandably did not make the “gag” order applicable to attacks on him personally, Trump’s vitriol against the judge will undoubtedly continue. Those attacks are unwarranted, and we will not give them airtime by repeating them here. This is simply not how the legal system should operate. Litigants should maintain a proper demeanor both in and out of court—especially a litigant who once held high office and hopes to do so again.

We also feel compelled to point out that Justice Engoron is a neutral jurist. He played no role in the Attorney General’s investigation and is not a partisan actor. His role is to adjudicate the claims and defenses before him. He is performing the duties of his office, plain and simple.

Issues that Justice Engoron has to address include whether the financial statements are permissible “puffery” (which former President Trump has previously described in another context as “truthful hyperbole”) or actionable misstatements; the degree to which the Trump family relied on the professional advice of the accounting firm that assisted in the preparation of the financial statements; the effectiveness of disclosures and disclaimers in the statements; whether the sophisticated financial institutions to which the statements were directed relied on them or did their own due diligence; and whether an absence of reliance is a valid defense under the governing statute (the Martin Act). Related issues are the effect of the statute of limitations and available remedies. These are normal issues that any judge faced with a Martin Act case might have to adjudicate, not a basis for the kinds of criticism former President Trump has made against Justice Engoron.

Of course, judges are not above criticism. They can make mistakes and render rulings that appellate courts may disagree with and overrule. Moreover, in our democratic system, litigants and citizens have the right to disagree with the rulings of any court, even the Supreme Court of the United States. But it is important to recognize the difference between protected expression and improper harassment of a judge or a judge’s staff. It is one thing to disagree with a ruling. It is another thing to rile up thousands, and perhaps millions, of people by making inflammatory (and defamatory) statements about public servants—like a judge’s law clerk, who has no means to defend or protect herself.

Indeed, the viciousness of former President Trump’s comments about Justice Engoron and his staff, and about many of the other judges handling the criminal cases also pending against him, raises questions about his intent to intimidate members of the judiciary and damage judicial independence, which is a bedrock principle of our democratic and constitutional system. A person who wields Trump’s influence and who might again be President in just over a year certainly has the ability to intimidate prosecutors, judges, and witnesses. It is a threat to the system when anyone recklessly wields such power.

Whether or not former President Trump will alter his behavior willingly—and we doubt he will—it is important for the public to understand the threat posed by the conduct at issue. If judges and their staff are subjected to harassment and intimidation for doing their duty, we cannot expect the judiciary to maintain the rule of law.

About the New York County Lawyers Association

The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion or gender, and has a long history of supporting the rights of LGBTQ+ people. Since its inception, NYCLA has pioneered some of the most far-reaching and tangible reforms in American jurisprudence. For more information on NYCLA please visit nycla.org.

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