"He's going to violate the gag order": Trump rages on Truth Social hours after judge's warning

"It's kind of like failing kindergarten," former DOJ official says

By Tatyana Tandanpolie

Staff Writer

Published October 4, 2023 11:48AM (EDT)

Former President Donald Trump speaks as he leaves the courtroom for a lunch recess during the second day of his civil fraud trial at New York State Supreme Court on October 03, 2023 in New York City. (Michael M. Santiago/Getty Images)
Former President Donald Trump speaks as he leaves the courtroom for a lunch recess during the second day of his civil fraud trial at New York State Supreme Court on October 03, 2023 in New York City. (Michael M. Santiago/Getty Images)

Just hours after a New York judge issued a limited gag order against him, former President Donald Trump took to social media Tuesday to question the legitimacy of his civil fraud case on trial in the state.

New York Supreme Court Justice Arthur Engoron, who is presiding over the non-jury trial, imposed the order barring all parties from posting about any of his staff members on the former president Tuesday afternoon after Trump posted a false claim about Engoron's clerk being the girlfriend of Senate Majority Leader Chuck Schumer, D-N.Y., on social media while in court.

In last week's summary judgment in the lawsuit, which was brought by New York Attorney General Letitia James, the judge found Trump liable for committing fraud and ordered the dissolution of some of his key businesses. The trial, which started Monday, will tackle the remaining requests from James' office in the suit.

Trump bemoaned the case as "unfair" Tuesday evening in a post to Truth Social, dubbing the civil proceedings unconstitutional and a matter of "election interference."

"It is so unfair that I am being tried under Section 63(12), which is unconstitutionally being used to punish me because I am substantially leading Crooked Joe Biden in the polls," he wrote. "It is a Consumer Protection Statute, and not meant, at all, for Election Interference purposes, which is what this is all about!

"Under this Section of the law, I am not even entitled to a JURY (there is no checking of a box alternative!)," he continued. "This was done by Radical Left Marxists design, and is not the America we know. MAKE AMERICA GREAT AGAIN!"

The law Trump refers to is New York Executive Law Section 63(12), which grants the state attorney general the authority to investigate and prosecute an individual engaged in "repeated fraudulent or illegal acts" or who otherwise demonstrates "persistent fraud or illegality in the carrying on, conducting or transaction of business" on behalf of the people of New York State.

In the suit, James' office said that the former president defrauded banks and insurers for decades by inflating and deflating his assets on statements of financial condition to secure financing or attain favorable loan terms and lower insurance premiums. She seeks $250 million in penalties and a ban on Trump and the other defendants in the suit from serving as officers or directors of New York companies. 

It's unclear whether a jury trial would have been available to Trump under the statute (some legal experts believe it would not have been), according to The Messenger, because James is seeking injunctive and equitable relief — instead of just monetary damages — by way of disgorging "ill-gotten gains." While the Seventh Amendment protects one's right to a jury trial in civil cases involving large sums of money damages, New York State precedent maintains that disgorgement is equitable. 

Still, Engoron noted in court Monday that the reason he is holding a bench trial is because "nobody asked for" a jury trial on the former president's legal team. 

Trump continued to complain online after arriving in court on Wednesday.

"Just arrived at the Witch Hunt Trial taking place in the very badly failing (so sadly!) State of New York, where people and companies are fleeing by the thousands," he wrote. "Corrupt Attorney General, Letitia James, is a big reason for this. Statute 63(12) is meant to be used for Consumer Fraud. It has never been used before on a 'case' such as this, especially since I did absolutely nothing wrong. I borrowed money, paid it back, in full, and got sued, years later, with a trial RIGHT IN THE MIDDLE OF MY CAMPAIGN. I am not even entitled, under any circumstances, to a JURY. This Witch Hunt cannot be allowed to continue. It is Election Interference and the start of Communism right here in America!"

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"Despite the gag order — which again, is limited only to the judge's staff — Trump is back on Truth Social this morning with a post taking aim at New York Attorney General Tish James and filled with words from a Trump legal bingo card," tweeted MSNBC legal analyst Lisa Rubin.

Attorney Bradley Moss argued that the post itself "does not cross the line," opining that "this post was reviewed by the lawyers" before it was sent. 

While the Truth Social posts may not have violated the judge's order, some legal experts predicted that he would "almost certainly" violate it.

"If we're gonna ask, is Trump gonna violate a gag order? Almost certainly, yes," former acting Solicitor General Neal Katyal told MSNBC. "It's more likely that he'll violate the gag order than almost anything... I mean, we're talking a significant probability he's going to violate the gag order, and then the question is: Will the judge at that point take the really heavy medicine of putting a former president in jail, or will there be some sort of warning and monetary fine first?" he said, adding he expects the latter but the outcome would depend on exactly how Trump violates the order. 

"It's kind of like failing kindergarten," Katyal added. "To get a gag order imposed, you have to try. Trump managed to work at it and do it. And succeed. But it took a lot of work on his part. Now, I think the judge is basically saying, you attack a member of my staff, there will be serious sanctions, including even up to jail."

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CNN legal analyst and former federal prosecutor Elliot Williams suggested during Wednesday's edition of "CNN This Morning" that a prison stint is the only way to get the former president to comply with the gag order.

"In order to have a serious sanction against a defendant who's a billionaire, you really have to be sanctioning him hundreds of thousands of dollars, if not millions of dollars to really sort of stick it to him," Williams said. "And that's just not going to happen under the laws of New York court policy or procedure.

"You could put him in prison," he continued, addressing host Poppy Harlow. "You could do that. It's less likely but it's certainly doable and, frankly, Poppy, that's the one thing I think will work at this point because — just think about it — nothing has worked whether it is warnings, threats of gag orders or anything else. You've got one penalty left, right?"

Trial attorney Bernard Alexander, who specialized in employment law and civil rights cases, told Insider, however, that Trump is unlikely to incur those kinds of penalties even if Engoron finds he's failed to comply with the gag order. Any decision the court makes, Alexander said, will have to strike a balance between maintaining the former president's right to free speech and the legal objective of holding a fair trial.

"For one thing, the judge can prevent Trump's legal team from presenting certain evidence. But judges prefer not to put their thumb on the scales of justice that way," Alexander told the outlet, adding that if Trump's trial had a jury, the judge could instruct the jury to consider the violation in their decision. 

Alexander went on to say that the court could also impose a fine against Trump, "but that would be meaningless," and noted that judges in civil cases usually don't order people to go to jail, so Engoron will have to be creative in the sanction he chooses to issue to dissuade Trump from theoretically continuing to violate the order.

"Trump has money and he uses it to bully people. He can keep paying fines amounting to thousands of dollars – which is what would have to be imposed in a case like this – without giving it a second thought," Alexander told Insider. "The sanction must be something effective to reign Trump in, in order for him to take it seriously."

Alexander expressed that he was not surprised the order was issued and deemed it the correct course of action for Engoron.

"The judge is trying to maintain the integrity of the court and proceed with as light a touch as possible to allow the case to progress without any hint that the court is being impartial. The more Trump violates the rules, the more the judge has to act to maintain integrity and control," he said.

"The parties have a certain amount of latitude in being able to criticize the court, which includes the judge," he added. "But singling out a court employee in a way that might encourage Trump's supporters to individually attack or intimidate the employee is unacceptable."

By Tatyana Tandanpolie

Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.

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Aggregate Arthur Engoron Donald Trump Letitia James Politics