December 28, 2023

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Re: Donald J. Trump, et al. v. The Honorable Arthur F. Engoron, J.S.C., et al.,
No. 2023-851

Dear Ms. LeCours:

This firm represents Petitioner-Appellants Donald Trump, Jr., Eric Trump, The Donald J.
Trump Revocable Trust, DJT Holdings LLC, DJT Holdings Managing Member LLC, Trump
Endeavor 12 LLC, 401 North Wabash Venture LLC, Trump Old Post Office LLC, 40 Wall Street
LLC and Seven Springs LLC in the above-referenced matter. We write jointly with counsel for
Petitioner-Appellants President Donald J. Trump (“President Trump”), Allen Weisselberg, Jeffrey
McConney, the Trump Organization, Inc., and Trump Organization LLC in response to this
Court’s request for comments addressing the Court’s subject matter jurisdiction over the instant
appeal.1

A. Introduction.

This appeal involves the unconstitutional prior restraint of the core political speech rights
of President Trump, a frontrunning candidate for the Presidency of the United States. Thus
significant, direct, and impactful constitutional questions are herein presented for resolution in
now the only forum and the only context in which any meaningful relief can possibly be obtained.
Indeed, these constitutional questions are of preeminent public importance. Simply put, Supreme
Court cannot lawfully insulate itself from justifiable and substantiated claims of bias by imposing
gag orders placing a prior restraint on the core political speech of President Trump. Moreover,
any deprivation of core First Amendment speech rights no matter how brief constitutes irreparable
injury warranting immediate and effective relief. As indicated in Petitioners’ Preliminary
Statement, the exhibits thereto and Petitioners’ application for a stay pending appeal, Petitioners
seek this Court’s intervention to redress Supreme Court Justice Arthur F. Engoron’s (“Justice
Engoron”) direct and egregious violations of the United States Constitution and the New York

1
All of the Petitioner-Appellants in the above-referenced matter are collectively referred to herein as “Petitioners”.
Lisa LeCours, Chief Clerk and Legal Counsel to the Court
State of New York, Court of Appeals
December 28, 2023
Page 2

State Constitution. Justice Engoron’s imposition of prior restraints on the speech of Petitioners—
including the frontrunner for the Republican presidential nomination—and of their counsel during
a bench trial of historic consequence clearly raises seminal First Amendment questions that this
Court should hear and resolve.

By way of background, on November 15, 2023, Petitioners initiated the underlying Article
78 proceeding in the Appellate Division, First Department, seeking, inter alia, a writ of prohibition
forbidding Supreme Court from continuing to violate the First Amendment to the United States
Constitution and Article I, Section 8 of the New York Constitution. Specifically, Petitioners
challenged the constitutionality of two gag orders (the “Gag Orders”) issued by Justice Engoron,
and the sanctions Justice Engoron imposed thereunder, in the underlying action captioned People
of the State of New York, by Letitia James, Attorney General of the State of New York v. Donald
J. Trump, et al., Index No. 452564/2022 (Sup. Ct. N.Y. County), barring: (1) the parties from
commenting on members of Justice Engoron’s staff; and (2) counsel from commenting on
confidential communications between Justice Engoron and his staff.

Petitioners also sought from the First Department a stay of those Gag Orders pending
resolution of the Article 78 proceeding. After oral argument at the First Department, Justice David
Friedman granted an interim stay of the Gag Orders “[c]onsidering the constitutional and statutory
rights at issue.” On November 30, 2023, a four-justice panel of the First Department vacated that
interim stay and denied Petitioners’ motion for a stay pending resolution of the Article 78
proceeding. This summary ruling contains no explanation of the Court’s rationale for vacating the
stay imposed by Justice Friedman.

On December 4, 2023, Petitioners moved the First Department for leave to appeal the
November 30, 2023, order to the Court of Appeals and for expedited resolution of the Article 78
proceeding.2 That same day, a single Justice of the First Department granted Petitioners’
application for an expedited briefing schedule on the motion. The motion for leave to appeal was
fully submitted as of December 11, 2023, and the Article 78 petition was fully submitted as of
December 12, 2023. On December 14, 2023, the First Department dismissed the Article 78
petition (the “Petition”) as “seeking review of orders not reviewable under article 78” and denied
leave to appeal of its vacatur of interim relief to this Court. Notice of entry of the First
Department’s orders was served the same day.

On December 17, 2023, Petitioners appealed to this Court as of right pursuant to CPLR §
5601(b)(1). On December 21, 2023, Petitioners were directed by this Court to submit comments

2
Petitioners also sought emergency relief in the form of referring the motion to a panel for immediate disposition in
connection with that application.
Lisa LeCours, Chief Clerk and Legal Counsel to the Court
State of New York, Court of Appeals
December 28, 2023
Page 3

addressing subject matter jurisdiction, namely, whether a substantial constitutional question is

B. This Court has Subject Matter Jurisdiction Over the Appeal.

CPLR § 5601(b) provides, in relevant part, “[a]n appeal may be taken to the court of
appeals as of right: (1) from an order of the appellate division which finally determines an action
where there is directly involved the construction of the constitution of the state or of the United
States.” Id.

i. The First Department Order Finally Determined the Underlying Article 78

The December 14, 2023, order appealed from finally determined the Article 78 proceeding
commenced in the First Department. There can be no question that the First Department’s
dismissal of the proceeding was final. Nor can there be any question that, for purposes of CPLR
§ 5601(b)(1), this appeal may be taken as of right, inasmuch as the First Department’s order finally
determined an original Article 78 proceeding (see, e.g., Worth Constr. Co., Inc. v. Hevesi, 8
N.Y.3d 548, 551 [2007] [appeal as of right of Article 78 petition pursuant to CPLR § 5601(b)(1)
where plaintiff alleged defendants acted in excess of their authority under the New York
Constitution]).

Moreover, as discussed more fully below, this appeal directly involves the construction of
the constitution of New York and of the United States. Indeed, Justice Friedman explicitly ruled
that the underlying Petition raised constitutional questions that warranted a stay of the Gag Orders
pending resolution of the proceeding. Those constitutional issues, which Petitioners now raise on
appeal, were squarely before the First Department, preserving those issues before the court of
original instance. See generally Matter of Schulz v State of New York, 81 N.Y.2d 336, 344 (1983).

In the order appealed from, the First Department rejected Petitioners’ arguments, declined
to redress Supreme Court’s unconstitutional overreach, and ignored the manifest exigency of the
proceeding. A copy of the order is annexed hereto as Exhibit A. The First Department’s assertion
that it dismissed the Petition on procedural grounds does not divest this Court of subject matter
jurisdiction. A constitutional argument need not prevail on the merits to support an appeal on
constitutional grounds. See Rose v. Moody, 83 N.Y.2d 65, 69 (1993). Moreover, the First
Department clearly considered certain of the constitutional arguments presented in the Petition in

3
Petitioners also brought an order to show cause seeking a stay of the Gag Orders pending appeal. On December 21,
2023, Judge Jenny Rivera of this Court directed Respondents to show cause at a motion term to be held on Friday,
December 29, 2023, why an order should not be entered granting Petitioners a stay.
Lisa LeCours, Chief Clerk and Legal Counsel to the Court
State of New York, Court of Appeals
December 28, 2023
Page 4

assessing whether to grant a writ of prohibition. Most notably, the First Department employed a
First Amendment balancing test to uphold the Gag Orders, wrongly finding that the “gravity of the
potential harm [to Petitioners] is small, given that the Gag Order is narrow.” Ex. A.

ii. The Constitutional Questions Involved Are Substantial.

The constitutional questions directly involved in this appeal are substantial. As noted, the
Petition presents an unprecedented question of preeminent public importance: whether Supreme
Court can insulate itself from justifiable and substantiated claims of bias by imposing Gag Orders
placing a prior restraint on the core political speech of President Trump, a civil defendant who
served as the 45th President of the United States and who is currently front-running candidate for
the Presidency in 2024.

As set forth in the Petition, the sweeping, unconstitutional Gag Orders, which restrict both
Petitioners’ and their counsel’s speech, have impermissibly abrogated Petitioners’ First
Amendment right to demand basic fairness and to highlight serious concerns raised by the open,
public, and partisan conduct that has permeated the trial. The Gag Orders silence the core political
speech of the leading Presidential candidate, regarding a quintessential public figure, on a question
of judicial bias, at the height of President Trump’s campaign. They are premised on a limitless
“heckler’s veto” theory that would justify the restriction of virtually any core political speech upon
the mere possibility that an unknown third-party will react to it negatively. The Gag Orders
prohibit Petitioners from making any in-court or extrajudicial statements about Justice Engoron’s
staff, including his principal law clerk, Allison Greenfield (the “Principal Law Clerk”), regardless
of the content of such statements or their focus on the perceived and documented bias of such
individuals.

Consequently, Petitioners are forbidden from speaking about the Principal Law Clerk’s
public, partisan activities in violation of the Code of Judicial Conduct during the pendency of the
underlying proceeding, even as Super Tuesday looms. Justice Engoron has confirmed that the Gag
Orders, as applied, categorically prevent Petitioners’ counsel from making a record of the Principal
Law Clerk’s partisan activity or Justice Engoron’s conduct in permitting her to sit with him on the
bench each day of trial, passing notes and providing near-constant input as a de facto co-judge.

As detailed in the Petition, millions of American voters have an interest, and a First
Amendment right, to hear what President Trump has to say about, inter alia, serious allegations of
partisanship in a trial wherein he has been forced to defend his integrity and his global business
empire. The speech at issue does not consist of idle or irrelevant assertions of bias. Rather,
President Trump and his counsel raised specific, and troubling, allegations of bias, coupled with
detailed facts supporting those allegations. Justice Engoron did not even attempt to address any
of these allegations on their merits. Instead, Justice Engoron not only swept them aside, but
imposed a prior restraint barring any mention of bias by President Trump or his counsel. In doing
Lisa LeCours, Chief Clerk and Legal Counsel to the Court
State of New York, Court of Appeals
December 28, 2023
Page 5

so, Supreme Court conveniently shielded itself from public criticism at a time when President
Trump, and over 100 million American voters, have an undeniable right to the full and free exercise
of their First Amendment rights.

President Trump should be permitted to exercise his constitutional right, as both a civil
defendant and a frontrunning Presidential candidate, to comment on his well-founded perception
of the Principal Law Clerk’s bias at a bench trial in which she has played an unprecedented role,
sitting on the bench and advising the finder of fact. President Trump’s right to raise this issue
implicates a touchstone of the American constitutional framework: the ability to criticize
government officials without fear of reprisal. Supreme Court’s disapproval of or disagreement
with President Trump’s speech, or the fact that a third party may respond to it in an abhorrent way,
does not justify limiting that speech or abrogating it entirely. To continue to sustain the Gag Orders
on such grounds would be to sanction the heckler’s veto, which the Constitution and substantial
precedent proscribe.

iii. The Instant Appeal Presents Novel, Meritorious Constitutional Arguments.

This case presents novel constitutional issues. President Trump has been, under threat of
fine or incarceration, prevented from publicly offering his well-founded opinion of how his own
bench trial is being conducted, including well-founded claims of bias, in an unprecedented case of
enormous, international public interest, where that conduct is intertwined with an ongoing
Presidential campaign in which he is the leading candidate. Neither the First Amendment nor the
New York Constitution permits such grave curtailment of plainly protected core speech.

Prior restraints, i.e., orders that suppress speech in advance of its expression based on
content and viewpoint, are presumptively invalid. Ash v. Board of Managers of 155
Condominium, 44 A.D.3d 324, 325 (1st Dep’t 2007). Only a clear and present danger of a serious,
substantive evil can justify such an infringement on the freedom of speech. Brummer v. Wey, 166
A.D.3d 475 (1st Dep’t 2018). This constitutional protection is at its apogee where the speech in
question is core political speech made by the frontrunner in the 2024 Presidential election
regarding perceived partisanship and bias at a trial where he is subject to hundreds of millions of
dollars in penalties and the threatened prohibition of his lawful business activities in the state in
obvious retaliation for the exercise of his First Amendment right to engage in political activities
and campaign for President. See In re Raab, 100 N.Y.2d 305, 312 (2003) (internal citations
omitted).

Moreover, the first Gag Order against President Trump is overbroad on its face insofar as
it prevents any speech, no matter how innocuous or relevant, about any member of Justice
Engoron’s staff. People v. Barton, 8 N.Y.3d 70, 75-76 (2006). As applied to President Trump, it
precludes a presidential candidate from commenting on the public conduct and possible ethical
violations of a vital member of Justice Engoron’s chambers, who sits with him on the bench
Lisa LeCours, Chief Clerk and Legal Counsel to the Court
State of New York, Court of Appeals
December 28, 2023
Page 6

throughout the trial, effectively co-judging the proceedings. In turn, the Gag Order precludes
substantive criticism of the Justice himself based on his Principal Law Clerk’s conduct.

Further, the Gag Orders, as entered, are not narrowly tailored to achieve the purported goal
of protecting Justice Engoron’s staff. The potential that speech may anger or provoke others does
not entitle Justice Engoron to suspend wholesale the rights afforded litigants by the First
Amendment and the New York Constitution. The First Amendment does not permit Justice
Engoron to restrict speech based on the unruly reaction of certain individuals. Rockwell v. Morris,
12 A.D.2d 272, 279 (1st Dep’t 1961); see also Brown v. Louisiana, 383 U.S. at 133 n.1 (Public
speakers “are not chargeable with the danger” that certain individuals “might react with disorder
or violence.”). Indeed, the “heckler’s veto” rationale is so broad that it would authorize silencing
any core political speech that might result in an unidentified person reacting to public speech with
unruly comments or threats. That rationale would effectively nullify the First Amendment for
public speakers.

The second Gag Order, which prohibits counsel from “making any public statements, in or
out of court, that refer to any confidential communications, in any form, between [Justice
Engoron’s] staff and [Justice Engoron],” compounds Petitioners’ significant injuries. In the weeks
after the Gag Order was entered, counsel for Petitioners repeatedly raised with Justice Engoron
and observed on the record the Principal Law Clerk’s unusual public presence on the bench,
constant note-passing to the Court, eye-rolling, facial expressions, and visible co-judging of the
proceedings. As this Court knows, counsel are obligated to zealously advocate for their clients
and make a record of conduct they believe to be improper. Not only was the closed-circuit
courtroom camera angle adjusted to obscure Justice Engoron’s collaboration with the Principal
Law Clerk while on the bench, but Justice Engoron also instructed counsel that they cannot make
an oral motion regarding the Principal Law Clerk. Worse yet, Justice Engoron ultimately refused
to permit even a written motion addressing the issue of the Principal Law Clerk’s bias and its
imputation to Justice Engoron by declining to sign Petitioners’ order to show cause for a mistrial.

Justice Engoron’s extraordinary expansion of his initial order to Petitioners’ counsel limits
and chills advocacy on Petitioners’ behalf and precludes counsel, on pain of contempt, from
making a record of claimed misconduct and bias in a public courtroom. In closing the record to
any further commentary on the Principal Law Clerk, the second Gag Order again insulates Justice
Engoron from contemporaneous criticism and denies Petitioners and the appellate courts a
complete record on the appeal of the final judgment.

The imposition of the Gag Orders and continued enforcement thereof thus exceeds Justice
Engoron’s jurisdiction and violates the First Amendment of the United States Constitution and
Article I, Section 8 of the New York Constitution. The Court should, respectfully, consider and
resolve these critical constitutional questions. Review by the Court is vital to Petitioners’ rights,
as Petitioners will continue to suffer irreparable injury during the enforcement of the Gag Orders.
 LAW OFFICES
RoBERT & RoBERT PLLC

Lisa LeCours, Chief Clerk and Legal Counsel to the Court

Elrod v. Bums, 427 U.S . 347, 373 (1976) ("The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury."). For these reasons, the
Court has jurisdiction over the issues presented herein. Gannett Co. v. De Pasquale, 43 N.Y.2d
370, (1977), affd sub nom. , Gannett Co. v. DePasquale, 443 U.S. 368 (1979).

C. Conclusion.

Consequently, Petitioners respectfully submit that the Court has subject matter jurisdiction
over the instant constitutional claims.

Should the Court have any questions, please feel free to contact me.

Respectfully submitted,

cc: All Counsel of Record (Via Hand and Companion Filing Upload Portal)
EXHIBITA
EXHIBIT A
FILED: APPELLATE DIVISION - 1ST DEPT 12/14/2023 10:25 AM 2023-05859
NYSCEF DOC. NO. 27 Supreme Court of the State of New York RECEIVED NYSCEF: 12/14/2023

Appellate Division, First Judicial Department

1443 In the Matter of DONALD J. TRUMP et al., Index No. 452564/22

-against-

HON. ARTHUR F. ENGORON, etc., et al.,

Habba Madaio & Associates, New York (Alina Habba of counsel) and Robert & Robert,
PLLC, Uniondale (Clifford S. Robert and Michael Farina of counsel), for petitioners.

David Nocenti, Office of Court Administration, New York (Michael J. Siudzinski of

Letitia James, Attorney General, New York (Dennis Fan of counsel), for Letitia James,
respondent.

Petition pursuant to CPLR article 78 to annul and vacate four orders of Supreme

Court, New York County (Arthur F. Engoron, J.), entered, respectively, October 3, 2023

(the First Gag Order)1, November 3, 2023 (the Supplemental Limited Gag Order)2,

October 20, 2023 (the First Contempt Order), and October 26, 2023 (the Second

Contempt Order), which, inter alia, prohibited petitioners and their counsel from

speaking publicly about members of Justice Engoron’s staff, and imposed fines against

1 “Consider this statement a gag order forbidding all parties from posting, emailing, or
speaking publicly about any members of my staff” (Transcript of October 3, 2023 at 271,
lines 1-3).
2 “I hereby order that all counsel are prohibited from making any public statements, in

or out of court, that refer to any confidential communications, in any form between my
staff and me” (Supplemental Limited Gag Order, November 3, 2023 at 3).
petitioner Donald J. Trump for violating the First Gag Order on two occasions,

unanimously dismissed, without costs, as seeking review of orders not reviewable under

article 78.3

CPLR 7803(2) is a codification of the common-law writ of prohibition, which is

available to restrain an unwarranted assumption of jurisdiction and to prevent a court

from exceeding its powers (see e.g. LaRocca v Lane, 37 NY2d 575, 578-579 [1975], cert

denied 424 US 968 [1976]; Matter of Johnson v Sackett, 109 AD3d 427, 428-429 [1st

Dept 2013], lv denied 22 NY3d 857 [2013]). In their second, third and fourth causes of

action, petitioners seek a writ of prohibition to vacate and annul the Gag Orders and the

Contempt Orders.

Initially, we note that the Supplemental Limited Gag Order only prohibits

statements made by counsel, not by petitioners. Inasmuch as the Supplemental Limited

Gag Order does not apply to petitioners, they lack standing to challenge it (see e.g.

Lucker v Bayside Cemetery, 114 AD3d 162, 169 [1st Dept 2013], lv denied 24 NY3d 901

[2014] [to establish standing, a party must show “injury in fact, that is, an actual stake in

the matter to be adjudicated”]).

As to petitioners’ demand for a writ of prohibition with respect to the First Gag

Order and the Contempt Orders, the Court of Appeals has found that the “extraordinary

remedy” of a writ of prohibition lies only where a “clear legal right” to such relief exists

(Matter of Rush v Mordue, 68 NY2d 348, 352 [1986]). Permitting liberal use of this

remedy would effectively achieve premature appellate review and undermine the

3The First Gag Order and Supplemental Limited Gag Order will be referred to
collectively as the Gag Orders; the First Contempt Order and the Second Contempt
Order will be referred to collectively as the Contempt Orders.

2
statutory and constitutional regime governing the appellate process (id. at 353).

Invoking this extraordinary remedy is only appropriate if there exists a substantial claim

of an absence of jurisdiction or an act in excess of jurisdiction (Matter of Nicholson v

State Commn. on Judicial Conduct, 50 NY2d 597, 605-606 [1980]).

In determining whether to exercise the court’s discretion and grant a writ of

prohibition, several factors are to be considered, including “the gravity of the harm

which would be caused by an excess of power” and “whether the excess of power can be

adequately corrected on appeal or by other ordinary proceedings at law or in equity”

(LaRocca v Lane, 37 NY2d at 579). Here, the gravity of potential harm is small, given

that the Gag Order is narrow, limited to prohibiting solely statements regarding the

court’s staff (cf. United States v Trump, __F4th __, 2023 WL 8517991, 2023 US App

LEXIS 32778 [DC Cir Dec. 8, 2023] [upholding a broader gag order than the one at

issue here]). Further, while the Gag Order and Contempt Orders were not issued

pursuant to formal motion practice, they are reviewable through the ordinary appellate

process (see CPLR 5701[a][3]; Matter of Northern Manhattan Equities, LLC v Civil Ct.

of the City of N.Y., 191 AD3d 536, 537 [1st Dept 2021] [“petitioner[s] could seek

appellate review by moving to vacate or modify the order and then, if necessary,

appealing from the denial of that motion to the Appellate [Division]”]). For these

reasons, a writ of prohibition is not the proper vehicle for challenging the Gag Order and

Contempt Orders.

As to the first cause of action, CPLR 7801(2) clarifies that article 78 review is not

permitted in a civil or criminal action where it can be reviewed by other means, “unless

it is an order summarily punishing a contempt committed in the presence of the court”

(CPLR 7801[2]). The Contempt Orders here were not issued “summarily,” nor was the

3
contempt “committed in the presence of the court.” To the extent there may have been

appealable issues with respect to any of the procedures the court implemented in

imposing the financial sanctions, the proper method of review would be to move to

vacate the Contempt Orders, and then to take an appeal from the denial of those

motions.

THIS CONSTITUTES THE DECISION AND ORDER

ENTERED: December 14, 2023