“Terrible strategy”: Legal experts skewer Trump lawyers’ plot to invoke “nuclear option” at trial

Donald Trump’s lawyers have indicated that they will be filing for a mistrial in the former president’s New York civil fraud case as the trial enters its second phase with one court observer characterizing the move to The Daily Beast as the “nuclear option.”

Throughout the trial, Trump has pushed claims about Judge Arthur Engoron and his law clerk Allison Greenfield being biased and motivated by politics. But on Friday, the former president received outside help to support his narrative when Rep. Elise Stefanik, R-NY, filed an ethics complaint with a state court commission citing “inappropriate bias and judicial intemperance.” Stefanik accused Engoron of “weaponized lawfare” against Trump and called on him to recuse himself.

However, since Stefanik’s ethics complaint contains “broad allegations” of political bias without “any factual basis,” the ethics complaint will likely be ignored in the trial, Gregory Germain, Syracuse University law professor, told Salon

“Unless there are some facts showing a serious ethical violation (which seems very unlikely), it will have no impact on the trial,” Germain said. “Judge Engoron’s alleged statement that Trump is a ‘bad guy,’ after reviewing the evidence for summary judgment, does not show judicial bias. There would have to be some evidence that Judge Engoron held that view before hearing the evidence.”

Trump, who is facing a $250 million lawsuit from New York Attorney General Letitia James over more than a decade of alleged fraud, is at risk of jeopardizing his business empire. At stake is the possibility that Engoron could order a receiver to dissolve the entire company to satisfy millions in fines and ban Trump and his adult children from engaging in business activities within the state of New York. 

The three-month court battle could end with Trump’s lawyers filing a motion to declare a mistrial, the Beast reported. While his legal team has hinted at this ploy, nothing has been filed yet. 

Attorney Alina Habba told Fox News on Sunday that “we’ll be filing papers to address all of those issues… soon, very soon.”

Habba added that the problem with filing motions is that the judge will be left to decide whether he will recuse himself or not. 

“It’s a bench trial,” she continued. “We have one judge. And it’s the same judge that issued the gag order that has to make those determinations. So, at this point, I don’t have any reason to believe he shouldn’t after what we have learned, if it’s true.”

Last month, Engoron imposed a gag order, prohibiting Trump and other parties from publicly discussing members of his staff after Trump baselessly accused his clerk of being the “girlfriend” of Senate Majority Leader Chuck Schumer, D-N.Y. Subsequently, Engoron fined Trump $15,000 for breaching the gag order.

The ex-president has displayed a combative demeanor since the moment he took the stand, turning the courtroom into political theater by attacking the judge and the attorney general who brought the case against him. But employing campaign-style rhetoric in the courtroom might be detrimental to his case.

“Trump’s strategy of attacking the judge because the judge is ruling against him (as he does in almost every case brought against him) is a terrible strategy,” Germain said. “I would be shocked if these allegations have any impact at all on the trial or on an appellate court.”

The purpose of Trump’s allegations is “entirely political,” since he is hoping to obtain public support, he added. However, Trump does have an argument that James’ action was political since this is not the kind of case an attorney general “normally” brings and would not have been brought against an unknown real estate developer.  

“There needs to be an innocent victim or potential innocent victims for the AG to take action,” Germain continued. “So there is some resonance to his arguments about being targeted for political reasons. But there is also no question that he grossly overvalued his properties.  Whether that constitutes fraud (where there was no reasonable reliance and harm) is a legitimate legal question for appeal. But the courts will base their decisions on evidence and the law, and not on allegations and dissatisfaction with the results of the trial.”

---

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

---

If Trump’s team does indeed file a motion for a mistrial, it is likely that the court will deny the motion, Laurie Levenson, a law professor at Loyola Marymount University, told Salon.

“The court has not been sympathetic to Trump’s arguments so far and it has made clear that he, and his lawyers, have acted inappropriately throughout the trial,” Levenson said. “The defense may be filing this motion more for the court of public opinion and the court of appeal, than for the trial court.”

A California civil rights attorney V. James DeSimone told Salon that Trump’s team has not presented any facts or evidence to prove they have been treated unfairly in court. Judge Engoron admonishing Trump while on the stand was not motivated by bias but by Trump’s own misconduct on the witness stand. 

If a judge’s clerk passing several notes to him during the trial last week is grounds for a mistrial, no trial would ever be decided by a jury, he added. 

“Trump’s attorneys are somehow claiming the contents of those notes, which they do not know, equates to influencing the judge,” DeSimone said. “It’s an oddball and hopeless approach, but probably plays well to Trump’s followers who need regular stoking to continue believing he is a victim.”