Trump un-gagged could prime his fraud trial for more chaos

For six weeks, lawyers with New York Attorney General Letitia James put more than two dozen witnesses on the stand and introduced dozens of documents to connect Donald Trump and his business empire to a decade of fraud allegations.

When the attorney general handed the case to his team of lawyers on 13 November, their first witness was Donald Trump Jr, who spent several hours testifying to his father’s “artistry” and “sexy” properties.

Two days later, Mr Trump’s attorneys demanded a mistrial. They lost. His attorneys also sued the judge overseeing the case, hoping to strike down a gag order that has blocked the former president from attacking court staff. They won.

Meanwhile, other members of Mr Trump’s legal team – a stable of attorneys defending him in four criminal cases and lawsuits across the country – are preparing for a separate courtroom battle to revoke a different gag order that prevents him from attacking witnesses and others in case accusing him of a conspiracy to overturn 2020 presidential election results.

In a filing to a federal judge, Mr Trump’s attorneys argued that the gag order blocks his “core political speech” – including his abilities to spread false claims about the chief court clerk in his fraud trial, in a courthouse that has been inundated with threatening messages.

The cases underscore Mr Trump’s growing entanglements among his many criminal cases and lawsuits and repeat warnings from prosecutors that the leading candidate for the 2024 Republican nomination is growing increasingly volatile.

Mr Trump continues to cast himself as a victim of political prosecution, insisting that the multiple lawsuits and grand jury indictments against him are part of a Democratic conspiracy to prevent him from reaching the White House.

His rage joins an ongoing narrative spread across campaign rally speeches; pugilistic statements on his Truth Social; campaign fundraising messages; defensive statements from his surrogates in Congress; court filings from attorneys to federal court judges; statements from his attorneys to the press and to the judge overseeing his fraud trial; and in his own remarks in- and outside the New York courtroom where his family business is under a level of scrutiny that threatens the narrative that built up his political persona.

Judge Arthur Engoron’s pretrial ruling in the case already determined that Mr Trump, his adult sons and their chief associates in his Trump Organization umbrella defrauded banks and investors with grossly inflated valuations of his net worth and assets over a decade.

Mr Trump signed off on those fraudulent statements of financial condition – the documents at the heart of the case – when they were handed to banks and insurers for favourable loans and rates that enriched his real estate empire, according to the attorney general’s lawsuit.

The attorney general’s case reached its climax with testimony from former Trump Organization figures, including his former attorney Michael Cohen, and Mr Trump’s children Donald Jr, Eric and Ivanka Trump, as well as the former president himself, whose meandering testimony repeatedly insulted the case, the judge, Ms James, and one of her lawyers who questioned him.

When the attorney general rested her case, Mr Trump claimed he “won”. A few days later, he shared a call for her arrest.

Ms James and the judge are fair targets under the gag order Judge Engoron issued to protect members of the court from his targeted rhetoric. Still, Mr Trump violated the order, twice, and comments from his attorneys directed at his chief clerk in the middle of a hearing prompted him to expand the order to include them, too.

In his written order earlier this month, the judge criticised his attorneys’ “on the record, repeated, inappropriate remarks” about his chief clerk Allison Greenfield, whom they have been “falsely accusing” of “bias against them and improperly influencing the ongoing bench trial.”

“As I have stated on the record, seemingly to no avail, my law clerks are public servants who are performing their jobs in the manner in which I request,” the judge wrote.

The judge also shot down “unpersuasive” First Amendment arguments, pointing to threats of political violence that have surrounded Mr Trump’s criminal and civil cases since his first indictment earlier this year.

“The threat of, and actual, violence resulting from heated political rhetoric is well-documented,” he wrote.

The judge said his 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,” he added.

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Judge Engoron’s order echoed several filings from federal and state prosecutors seeking similar protections for prospective jurors and witnesses in his upcoming criminal trials for election interference in Georgia and at the federal level in Washington DC.

Fulton County prosecutors got a court order to block the former president and his co-defendants, as well as members of the press and others in the court, from disclosing information about the jury pool in a trial surrounding alleged efforts to overturn the state’s election results.

Far-right message boards and platforms dominated by pro-Trump users such as Gab and Truth Social were filled with posts surrounding the case and the jurors, with pledges to reveal the identities of jurors with the intent to harass them.

Accounts on fringe far-right message boards such as 4chan and The Donald also posted threatening messages about jurors, labelled their list of names in the indictment as a “hit list,” and posted images of jurors’ alleged profiles on Facebook and LinkedIn.

A recent filing from US Department of Justice special counsel Jack Smith – who is seeking a gag order in the federal election interference case – pointed to Judge Engoron’s warnings about the flood of threatening messages his courtroom has received since the start of the fraud trial.

That episode, and others, are “part of a pattern, stretching back years, in which people publicly targeted” by Mr Trump are “subject to harassment, threats, and intimidation,” prosecutors wrote.

Mr Trump “seeks to use this well-known dynamic to his advantage,” they added, and “it has continued unabated as this case and other unrelated cases involving the defendant have progressed.”

On 16 November, after an emergency lawsuit from Mr Trump’s attorneys, a New York appellate court judge temporarily lifted the gag orders in Mr Trump’s fraud case, “considering the constitutional and statutory rights at issue”.

Mr Trump immediately attacked Judge Engoron and “his politically biased and out of control, Trump Hating Clerk, who is sinking him and his Court to new levels of LOW, is a disgrace.”

His adviser Jason Miller also posted a website to his social media that uses her name as the URL and smears her as a “democratic operative and hack”.

“There’s no way President Trump can receive a fair trial when Democrats are sending partisan attack dogs to do their dirty work. How is this ‘justice’?” he wrote.

Those claims about the judge’s clerk were also woven into a mistrial motion from Mr Trump’s attorneys, who leaned into baseless attacks echoed by the former president and his Republican allies that have spread widely across social media.

His attorneys alleged Allison Greenfield’s “unprecedented role” in the trial “would cause even a casual observer to question the court’s partiality.”

“Thus, only the grant of a mistrial can salvage what is left of the rule of law,” they wrote.

Judge Engoron rejected the “nonsensical” legal arguments from Mr Trump’s legal team involving his clerk and underscored his “unfettered right” to consult with his law clerks throughout the course of a trial.

“My rulings are mine, and mine alone. There is absolutely no ‘co-judging’ at play,” according to the filing from the judge, referencing an allegation from Mr Trump’s attorneys.

He also rejected the attorneys’ “disingenuous” and “bad faith” use of his statements from the bench that were taken out of context while Mr Trump was testifying on the witness stand last week. Attorneys quoted the judge saying “I’m not here to hear what [Donald Trump] has to say,” a statement shared by Mr Trump’s campaign in email attack ads and across right-wing social media accounts as their evidence that the judge had rigged the trial against him.

The quote omitted the fact that the judge said “I’m here to hear him answer questions” immediately after.

“Indeed, those are precisely the roles of the witness and the finder of fact,” Judge Engoron wrote in his order dismissing the mistrial motion.

Witness testimony, meanwhile, has continued inside the judge’s courtroom on the third floor of the New York State Supreme Court building on Centre Street in lower Manhattan, where the defence has introduced a parade of expert witnesses to poke holes in Judge Engoron’s judgment against Mr Trump and his co-defendants.

Among the witnesses introduced in the first week of the defence arguments: a major donor to Mr Trump’s campaign, an insurance broker he met on a golf course, and self-appointed real estate experts who were given relatively wide latitude to allow the defence to leave no stone uncovered as attorneys prepare for their inevitable appeal.

In their testimony, the Trump family repeatedly put any blame for alleged missteps on the statements of financial condition on the accountants they hired to make them. They trusted their “expertise,” as Donald Jr said.

At one point, attorneys pointed to the square footage in the Trump Tower penthouse that Forbes magazine had reported was triple its actual size. The resulting value, with that inflated square footage, spiked from $116m to $327m.

Judge Engoron asked witness Jason Flemmons, a forensic accountant, whether the Trumps’ accounting firm Mazars would have been required to notice that change. Mr Flemmons said yes.

State attorney Kevin Wallace, in his cross-examination, asked him whether he ever encountered people facing allegations of fraud trying to “throw their accountants under the bus.”

Mr Flemmons also testified that the guiding principles for creating those statements of financial condition can change – if they’re disclosed – and argued that one could choose the “methodology” to reach a desired outcome as long as it matches up with the math to get there.

The attorney general’s case argues that Mr Trump went beyond exaggerations and picking and choosing favourable valuations, while excluding building restrictions and lying about the size of his properties, among other claims, according to the lawsuit.

“People come up with numbers,” Mr Trump said in a pretrial deposition earlier this year. “Sometimes they’re right, sometimes they’re wrong.”