NEW YORK — A gag order that barred Donald Trump from commenting about court personnel after he disparaged a law clerk in his New York civil fraud trial was temporarily lifted Thursday by an appellate judge who raised free speech concerns.
Judge David Friedman of the state’s intermediate appeals court issued what’s known a stay — suspending the gag order and allowing the former president to freely comment about court staff while a longer appeals process plays out.
The trial judge, Arthur Engoron, imposed the gag order on Oct. 3 after Trump made a false comment about the judge’s law clerk on social media. He later fined Trump $15,000 for violations and expanded it to his lawyers after they questioned the clerk’s prominent role in the trial.
Ruling at an emergency hearing Thursday, Friedman questioned Engoron’s authority to police Trump’s speech outside the courtroom — such as his frequent gripes about the case on social media and in comments to TV cameras in the courthouse hallway.
Friedman said that while it’s true that judges often issue gag orders, they’re mostly used in criminal cases where there’s a fear that comments about the case could influence the jury. Trump’s civil trial doesn’t have a jury.
Trump lawyer Christopher Kise said after Friedman ruled that the appellate judge “made the right decision and allowed President Trump to take full advantage of his constitutional First Amendment rights to talk about bias in his own trial, what he’s seeing and witnessing in his own trial — which, frankly, everyone needs to see.”
Another Trump attorney, Alina Habba, indicated she has no plans to advise the former president to stay quiet about the clerk.
“I don’t see a reason for restrictions because Ms. James is continuing to disparage my client,” said Habba, referring to New York Attorney General Letitia James, who is prosecuting the case. “Both sides need to be able to speak.”
Trump hasn’t threatened the clerk’s safety, she said. She suggested that Greenfield was bringing scrutiny upon herself by being visible in court and by using social media.
Friedman’s ruling also applies to Trump’s lawyers and others involved in the case.
Trump and his lawyers have repeatedly put the law clerk, Allison Greenfield, under a microscope during the trial. They contend that the former Democratic judicial candidate is a partisan voice in Judge Arthur Engoron’s ear — though he also is a Democrat — and that she is playing too big a role in the case involving the former Republican president.
Engoron has responded by defending her role in the courtroom, ordering participants in the trial not to comment on court staffers and fining Trump a total of $15,000 for what the judge deemed violations. Engoron went on last week to prohibit attorneys in the case from commenting on “confidential communications” between him and his staff.
Trump’s lawyers — who, separately, sought a mistrial Wednesday — contend that Engoron’s orders are unconstitutionally suppressing free speech, and not just any free speech.
“This constitutional protection is at its apogee where the speech in question is core political speech, made by the frontrunner for the 2024 Republican presidential nomination, regarding perceived partisanship and bias at a trial where he is subject to hundreds of millions of dollars in penalties and the threatened prohibition of his lawful business activities in the state,” they wrote in a legal filing.
