An appeals court judge in New York has paused a gag order intended to block Donald Trump from disparaging members of a court in a civil fraud trial targeting the former president’s family business and real-estate empire, a measure that his attorneys claim is a violation of his First Amendment rights.
The judge overseeing the fraud case issued the order after the former president made a series of false and disparaging remarks about his chief clerk outside the courtroom and on his Truth Social account.
Mr Trump already has violated the order twice, incurring $15,000 in fines.
After Mr Trump’s lead attorney Christopher Kise excoriated the clerk earlier this month for what he called “bias” against his client, and amplified allegations outlined in a right-wing news website, Judge Arthur Engoron expanded the order to include the parties’ attorneys.
The order is a “serious and continuing violation of the procedural and substantive rights guaranteed to them under New York law and the United States Constitution,” according to a filing on Thursday from attorneys representing defendants in the case, which stems from a $250m lawsuit from New York Attorney General Letitia James alleging more than a decade of fraud within the Trump Organization.
Associate Justice David Friedman agreed to temporarily lift the gag order on Thursday afternoon, “considering the constitutional and statutory rights at issue”.
In their filing on Thursday, attorneys for Mr Trump said Judge Engoron “may not, by judicial decree, transmogrify the court’s summary contempt power into an unfettered license to inflict public punishments on a defendant for the defendant’s out-of-court statements made for the benefit of the fourth estate.”
A written order from the judge earlier this month shot down “unpersuasive” First Amendment arguments, pointing to threats of political violence that have surrounded Mr Trump’s criminal and civil cases, including threats directed at his own chambers.
“The threat of, and actual, violence resulting from heated political rhetoric is well-documented,” he wrote. “Since the commencement of this bench trial, my chambers have been inundated with hundreds of harassing and threatening phone calls, voicemails, emails, letters, and packages. The First Amendment right of defendants and their attorneys to comment on my staff is far and away outweighed by the need to protect them from threats and physical harm.”
Judge Engoron said attorneys’ failure to abide by the terms of the order will result in “serious sanctions” against them.
The filing from Mr Trump’s attorneys claims that the judge’s gag order “casts serious doubt on his ability to function as an impartial finder of fact in a bench trial.”
“His extraordinary expansion of that order both limits and chills advocacy on [defendants’] behalf and precludes counsel on pain of contempt from making a record of misconduct and bias in a public courtroom,” attorneys argue.
The attorney general’s case argues that Mr Trump, his adult sons and their chief associates fraudulently inflated his wealth and assets in documents that were used to secure favourable financing terms for their brand-building properties.
Judge Engoron’s pretrial judgment resolved a key claim in the lawsuit and found the defendants liable for fraud, leaving the trial – now in its seventh week, with Mr Trump’s attorneys presenting their defence – to determine the extent of damages, as well as several other claims outlined in Ms James’s lawsuit.
This week, attorneys for the defendants filed a motion for a mistrial, pointing to what they characterised are the “biased nature of the proceedings and the astonishing departures from ordinary standards of impartiality.”
The trial is scheduled through the weekend before Christmas. Attorneys for Mr Trump and his co-defendants are expected to present their case through 15 December.