The Trump trial judge in New York should read my new book, “The Constitution of the United States and Other Patriotic Documents.”
Assuming Judge Arthur Engoron can read and comprehend simultaneously, he might learn something valuable about our nation’s esteemed document.
Specifically, the meaning of the First Amendment. It is neither conditional nor selective. Every citizen has a right to speak freely, even those on trial. The court and its staff are not immune from criticism. They don’t enjoy an imaginary special protection or dispensation that’s hidden somewhere in the Constitution.
But this is a concept alien to Engoron who seems to hold our cherished Bill of Rights in contempt. Either that or he slept soundly through constitutional law class as a student some years back.
It was Engoron who imperiously held Donald Trump in contempt for commenting about court personnel during his ongoing civil fraud trial, enforcing a lawless gag order that the judge had earlier imposed. The order was a blatantly unconstitutional prior restraint of free speech and a presumptive violation of the First Amendment.
Engoron —which rhymes with moron— didn’t care. He wears a ceremonial robe and sits high on a bench. He thinks it elevates him above us mere mortals and empowers him to do whatever the hell he wants, civil liberties be damned.
Engoron is the worst kind of judge. Arrogant, smug, hostile, self-righteous, and obtuse. Repeatedly, his behavior on the bench as been bizarre and riven with bias. When the trial opened, he seemed in love with the attention and enamored of his sudden status as he mugged for the cameras.
Then he kicked his authoritarian dictates into overdrive as he tried to silence the principal defendant, Trump, even though the Constitution gives the judge no right to police a party’s statements outside of court.
Last week, an appellate judge temporarily shut down Engoron’s ruling while agreeing with Trump’s lawyers that the gag order was an abuse of power. This is especially true because the person being censored is running for high public office —the American presidency— and has a preeminent right to speak freely in defense of himself.
Equally important are the First Amendment rights of listeners. They are entitled to hear speech in the same way that speakers are entitled to deliver their speech.
In the very few cases where the U.S. Supreme Court has tolerated limited gag orders, they invariably involve the issue of speech that might adversely affect a jury. But this is a bench trial. There is no jury that will be tainted by any out-of-court remarks. That renders Engoron’s order even more absurd.
Engoron has alleged that Trump is harming the legal process. That’s laughable. In reality, Trump is the victim of a politically driven case brought by New York Attorney General Letitia James who campaigned on the promise to “get Trump.” She literally said that.
At the time, James had no access to investigative files, had seen no documents or evidence, and knew nothing at all about Trump’s financial statements submitted years ago to banks for business loans. Yet, in exchange for votes, she committed herself to a predetermined course of action with a preordained outcome.
James’ actions are an egregious violation of the canons of ethics that govern prosecutors. They have a duty to see that justice is done, not gain a conviction by targeting a specific individual for personal or political reasons. But the AG selfishly wanted to advance her career by exploiting the high office she was seeking. So, she went about vilifying Trump and derogating her authority.
In a series of splashy news conferences she all but convicted Trump in the court of public opinion before ever filing her specious case accusing him of inflating the value of his assets to obtain favorable loans from banks. She then mangled evidence, twisted facts, and contorted the law to achieve her malevolent goal.
The notion that Trump should not be permitted to respond in public is offensive and an affront to the First Amendment. He can and must defend himself by pointing out the unethical behavior of James, her prejudicial case against him, and the overwhelming bias of the court. This is fundamentally constitutional.
Beyond the spurious gag order, the trial itself resembles a farce. Before any witnesses took the stand or evidence was introduced, Engoron ruled that Trump committed fraud and was liable. The trial hadn’t even started! It is reminiscent of the old Soviet show trials where guilt is predetermined. The trial itself is an ostensible exercise. A charade.
James brought her case based on an oddball consumer protection statute that she dusted off from the basement archives. Her interpretation of it completely undermines more than a century of established common law, which requires proof of “intent to deceive.” She unilaterally tossed that basic principle out the window.
Moreover, the lawsuit against Trump also violates the U.S. Constitution by penalizing incorrect commercial speech, which the First Amendment absolutely protects.
The testimony at trial shows that Trump did not himself prepare the financials given to lending banks. His organization hired outside real estate experts, respected accountants, and some of the top lawyers in New York to perform the calculations. Those professionals vouched for their work.
But in a disclaimer document they also alerted lending institutions that they must conduct their own “due diligence,” which they did. The banks retained separate experts who, in the end, agreed with the Trump valuations and loaned the money.
Those banks profited handsomely by pocketing more than a hundred million dollars in profits. Trump even repaid many of the loans early. So, who has been harmed here? Where is the concrete injury that the law routinely demands? How is it possible that a consumer protection statute can be used (or, more aptly, misused) in a case where no consumer has been damaged or impaired in any way?
Only in an Alice in Wonderland justice system can a rogue prosecutor and a lame judge be allowed to levy a quarter of a billion dollars penalty against a defendant and take away his business despite no showing of detriment to any individual or entity.
But that is the sorry state of affairs in New York these days…where the inmates run the asylum.