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The New York attorney general's civil fraud trial against Donald Trump and others on Wednesday was supposed to focus on the credibility of his former lawyer and fixer Michael Cohen. But ultimately — and perhaps predictably — it became all about Trump's own credibility.
That's because during one of the impromptu press availabilities that have become a signature of Trump's trial attendance, he vented, “This judge is a very partisan judge with a person who’s very partisan sitting alongside him, perhaps even more partisan than he is.”
The focus on the gag order itself conceals an uglier development over the last few trial days.
Trump's attorneys as well as Trump himself, who testified under oath, insisted that Trump was referring to Cohen. Judge Arthur Engoron quickly concluded, however, first from the bench and then in a two-page order dissecting Trump's statement and testimony, that no amount of "imprecise language" could disguise the real subject of Trump's ire: Engoron's principal law clerk. And because this was Trump's second violation of a gag order prohibiting him from speaking publicly or posting about any of Engoron's staff, the judge fined Trump $10,000. On the bench Wednesday, Engoron directed a more ominous warning to Trump, "Don't do it again, or it will be worse."
Trump's team expressed outrage about Engoron's order on Wednesday and again on Thursday, repeatedly asking that the judge reconsider his order. Engoron agreed to review a recording of Trump's comments on Thursday. He ultimately held firm on the fine, saying it was “clear” Trump had been referring to the clerk.
But the focus on the gag order itself conceals an uglier development over the last few trial days: A recurring drumbeat of complaints about that clerk and/or her interactions with the judge, as perceived by Team Trump, that are now part of the court record, whether or not those complaints accurately represent what's happening in the courtroom.
In particular, on Wednesday morning, Trump lawyer Alina Habba raised what she noted, as a former law clerk herself, was a "delicate" request: "It is incredibly distracting when there are eye rolls and constant whispering at the bench when I am trying to cross-examine a witness. So I'm just asking politely that that be refrained." Engoron granted that request immediately and without comment.
But later in the day, after Engoron first announced his decision to fine Trump for the second time in two weeks, another Trump lawyer, Cliff Robert, aired his own "significant concern" about the clerk, according to a transcript of the proceedings. He stated:
I do think this is as good a time as any to express the defendant’s concern about what would appear to be the problem or the challenge that we face and that we feel like we’re trying the case before two judges and sometimes you appear to be leaning in one direction and then you’ll either receive a note or there will be an eye gesture or a roll of the face, and something changes and it is of significant concern to us, not just during examination of witnesses by us, examination by the Attorney General, but also in the general presentation of our case here. So I just wanted to put that on the record, sir.
Habba then joined the fray, accusing the clerk of "inappropriate" treatment over the yearslong course of the attorney general's investigation and litigation. She maintained, "I do not like being yelled at by law clerks who did not earn the robe."
In other words, Team Trump appears to have taken a lesson from their client: First, deny; then, deflect. And here, the object of their deflection (and projection) is a career law clerk they not only accuse of unprofessional, if not downright juvenile, body language and tone, but of undue influence on the judge and his decision-making.
Aside from defending his choice to have his law clerks "sit up on the bench" and making clear that all "final decisions are his alone," Engoron has done little to dispute Team Trump's account.
And therein lies the problem: Without a visual or audio record of the trial, it's unclear, at best, whether the Trump lawyers' complaints are valid. Both because of the court's own seating policies and the security protocols, the journalists in the room are already somewhat removed from the action. One colleague, who has been reporting on New York courts for decades, regularly brings his binoculars to the trial. And that most of us are simultaneously taking notes and reporting while we observe the trial only further complicates what we do and don't see.
Engoron understands full well that eyes are on his courtroom. In raising Trump's statement to reporters on Wednesday, he reflected, "We all know that we are in what I called at some point, an overheated environment. I don’t want anybody killed."
Yet when Engoron allows Trump's lawyers to disparage his and his clerk's courtroom behavior without responding on the record or otherwise memorializing visually what is transpiring, the Trump lawyers' rhetoric isn't serving solely as groundwork for an appeal. Instead, it's become, like Trump's social media posts and hallway press conferences, a form of political theater that similarly puts the judge and his staff at risk. And that might be reason enough to put a camera in his courtroom.