Attorneys defending President Trump are asking a New York State appellate court on Monday to extend a “pause” of what they alleged are “sweeping, unconstitutional” gag orders imposed by the judge presiding over the Trump Organization’s civil fraud trial in Manhattan.

The gag orders, the attorneys write, unconstitutionally restrict the speech of both the 45th president and his lawyers. The orders “impermissibly abrogated Petitioners’ First Amendment rights to demand basic fairness and to highlight publicly the very open, public and partisan conduct that has infected and permeated the trial.” 

The judge presiding over the trial, Arthur F. Engoron, beginning in October imposed four gag orders on Mr. Trump and on his attorneys, prohibiting them from publicly commenting about his court staff, specifically about his principal law clerk, Allison Greenfield, whom the former president and his attorneys have accused of profound bias. He fined Mr. Trump twice for violating the gag orders with a total sum of $15,000. 

The deputy counsel in the Office of Court Administration, Lisa M. Evans, argued in a court filing with the State Supreme Court, Appellate Division, First Department, last week that the gag orders are justified and the request to pause them should be denied. 

Mr. Trump’s First Amendment argument “has no merits,” she wrote, stating that the same appeals court had previously recognized that “reasonable limitations may be placed on speech where an important countervailing interest is being served.”

The gag orders were imposed after Mr. Trump posted, on October 3, a photograph of Ms. Greenfield and the Senate majority leader, Charles “Chuck” Schumer, on his Truth Social account, captioning the photo, without substantiation, “Schumer’s girlfriend.” The post was removed, after incurring Judge Engoron’s ire, but it resurfaced on Mr. Trump’s campaign website, earning the 45th president his first fine.      

Three weeks later, Judge Engoron issued a second fine after Mr. Trump told reporters outside the courtroom that “this judge is a very partisan judge with a person who’s very partisan sitting alongside him, perhaps even more partisan than he is.” Mr. Trump was called to the witness stand, where he claimed that the “partisan person” he was referring to was his nemesis, Michael Cohen, not Ms. Greenfield. The judge did not believe him.

Judge Engoron later extended the gag order to include the defense attorneys after they had also criticized the principal law clerk, alleging that she is “co-judging” the case by whispering into the judge’s ears, rolling her eyes, and passing notes to him. He insisted his law clerks are “public servants, who are performing their jobs in the manner in which I request. This includes providing legal authority and opinions, as well as responding to questions I pose.”   

In their motion, Mr. Trump’s  attorneys agree that “generally the Principal Law Clerk, like any judicial appointee, may assist the judge in the discharge of his duties.” Yet they deem it “both unprecedented and improper,” and “simply not normal’ that the principal law clerk sits “on the bench” and provides “constant input while an elected Supreme Court Justice presides.” 

Furthermore, the attorneys accuse Ms. Greenfield of violating the Code of Judicial Conduct, because she made political donations to Democratic organizations and causes “well in excess of the amount permitted.” Based on these donations, as well as on a failed campaign to become an elected judge herself, Mr. Trump’s attorneys allege that Ms. Greenfield is biased against their client, and supports New York’s Democratic attorney general, Letita James, who is suing Mr. Trump and seeking to put him out of business in the State of New York.

Judge Engoron’s rulings, so far, have been highly unfavorable to the Trump Organization, which is being sued for fraudulently inflating property values in order to secure better loan terms and insurance policies. Earlier this year, Judge Engoron ruled, without a trial, that the Trump Organization committed fraud, and revoked its privileges to do business in New York. That revocation has been suspended while Mr. Trump appeals. The current trial is to determine damages. Ms. James is seeking an estimated $250 million and for the Trump Organization to be driven once and for all from New York.

Mr. Trump’s attorneys have already petitioned, unsuccessfully, for a mistrial based on Ms. Greenfield’s “bias.” With an unfavorable outcome from Judge Engoron likely a foregone conclusion, they are expected to use Ms. Greenfield’s presence as grounds for appeal to a higher court, where legal observers expect the Trump Organization’s fate in New York to be ultimately decided.

In the face of repeated complaints of bias, the judge has repeatedly stated that his decisions are not politically motivated. He rules “right down the middle,” he said in court. In his written November 3 decision he wrote that “the gag order is tailored as narrowly as possible, to accomplish its purpose, which is to protect the safety of my staff and promote orderly progression of the trial.” 

Ms. Evans, the attorney for the New York State court system, defended Judge Engoron’s decision by providing the Appellate Division with an affidavit from Charles Hollon, a New York court officer assigned to the Judicial Threats Assessment Unit. 

Captain Hollon disclosed that the judge and his staff are “being inundated with hundreds of harassing and threatening phone calls, voicemail messages, and emails.” The threats, he said, come “on a daily basis.” The situation has compelled his unit to “constantly reassess and evaluate” security methods used “to ensure the safety of the judge and those around him.”

But Mr. Trump’s defense team relies on well-established First Amendment   law, as ordained by the Supreme Court, that aggressively protects speech, especially speech critical of government officials. Unless the speech at issue is direct incitement to criminal acts, First Amendment law generally refuses to consider the reaction of people to the speech. Stated simply, Mr. Trump’s lawyers argue that it is settled law that he is not responsible for violent threats made by internet trolls.

Mr. Trump’s attorneys write that neither their client, nor his lawyers, have ever “called for violence against the Principal Law Clerk nor encouraged, or even condoned, the behavior Mr. Hollon describes.” 

According to Ms. Evans’ court papers, the number of threats increased after an appellate judge temporarily lifted the gag orders on November 16. Ms. Greenfield has received 20 to 30 hostile calls per day to her personal cell phone, and 30 to 50 threatening messages daily posted on social media platforms or sent to two personal email addresses. About half of these threats were antisemitic. 

“Although Mr. Trump did not directly threaten Ms. Greenfield, the comments made in his post resulted in hundreds of threatening and harassing voicemail messages that have been transcribed into over 275 single-spaced pages,” Ms. Evans wrote.

Mr. Trump’s attorneys responded that the “none of the contemptible dross reflected in those messages can be attributed” neither to their client nor to themselves, and that they have never made “a statement referencing the Principal Law Clerk’s religion, appearance, or private activities.” They insisted that every comment they made concerning the principal law clerk  referred to her “public presence and behavior on the bench or her public political activities.”

In their 1,902 pages long motion, the attorneys argued that “in essence, the Constitution does not permit Justice Engoron to curtail Petitioners’ speech simply because people may react to things that President Trump says,” adding that restricting Mr. Trump’s comments would only be justified if they caused a “clear and present danger” to the judge’s staff. 

The gag orders, they allege, are “not the result” of a “careful balancing” of the interests of free speech against a fair trial, but instead were imposed by the judge, in “a fit of pique.”

As soon as the gag orders were temporarily lifted, Mr. Trump celebrated the decision, commenting on Truth Social that “Judge Arthur Engoron has just been overturned (stayed!) by the New York State Appellate Division (Appeals Court), for the 4th TIME (on the same case!).”

“His Ridiculous and Unconstitutional Gag Order, not allowing me to defend myself against him 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,” Mr. Trump added.

On Thanksgiving Day, Mr. Trump wished a “Happy Thanksgiving to ALL,” and he included, “the Racist & Incompetent Attorney General of New York State, Letitia ‘Peekaboo’ James,” and “the Radical Left Trump Hating Judge, a ‘Psycho,’ Arthur Engoron,” and “his Politically Biased & Corrupt Campaign Finance Violator, Chief Clerk Alison Greenfield, to sit by his side on the ‘Bench’ & tell him what to do.”  

The gag orders will now be reviewed by a full panel of the State Supreme Court, Appellate Division. The higher court has not announced when its decision will be published.     

Meanwhile, the civil fraud trial against Donald J. Trump, his eldest sons, Don Jr. and Eric, their companies and other former Trump Organization executives continues. The defense is making its case and calling witnesses. The attorneys announced on Monday that Eric Trump will be back on the witness stand on December 6 and his father, the current front-runner for the GOP presidential nomination,  will return to the courtroom on December 11.