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NY Civil Fraud Trial: Why Trump Is So Angry & What Judge Engoron Should Do To Enforce Gag Order [1]

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Date: 2023-10-03  

Two underreported matters concerning Trump’s civil fraud trial in New York.

The first is why Trump is so uncontrollably angry : his lawyers forgot to demand a jury. In almost any jurisdiction, in any civil matter in which you can demand a jury, one side or the other must demand it. In New York, the rule is more liberal than in some jurisdictions where you have to demand a jury in the complaint or answer, or under the federal rules where you have 14 days after the last pleading. In New York, it is so easy; all you have to do is demand it one day before it is set for a hearing. This assumes Trump wanted a jury, which he most likely did. If so, his lawyers either forgot to ask him or forgot to demand it.

Civil Fraud Defendant Impersonating an Accoridionist

But almost everywhere, including New York and certainly federal courts, once the deadline passes, the right to a jury in a civil case is deemed waived, and the side that wanted the jury and forgot to ask for it is, like Trump’s classified documents, “In the Shitter.”

Then only way you can get a jury is if the other side agrees that it wants a jury too, and A.G. Letitia James is not going to agree, not a chance in a quadrillion. So Trump is stuck with Judge Engoron as the trier of fact. You get what you pay for, and Trump does not like to pay lawyers much if at all. This comes under the common law doctrine of “Tough Ass;” sorry to lapse into Latin.

The second is how Judge Engoron might make best use of that gag order he just imposed : Yes, certainly, this is a grave matter, Trump threatening an Engoron staff member. But sending him to jail for violating the gag order is just what Trump wants. What a fundraising bonanza and vote getter that would be for Trump.

Judge Engoron

As most readers have probably heard, civil defendants do not have to be there at each stage of a civil case, even a civil fraud case. But if Trump goes to jail, even for civil contempt, that would probably be grounds to stay the trial, to delay it, which is even more exactly what Trump wants. The better route is for Judge Engoron to say, on the record: “[I]f you violate this gag order, I am going to so rule during the trial, but I am going to impose penalties in the form of fines, or possibly jail time, at the end of this trial . For example, if you send out threatening material on social media, I have the power fine you $1 for each person that the threatening material reaches. And you are going to have to wait until the end of the trial to find out how much you have been fined.”

That approach in my view has the best shot of deterring threatening communications than a civil contempt jailing in a civil case, under which the judge generally has to let the contemptuous party out of jail once the contempt ceases. This is not like a criminal case where Trump (or another criminal defendant) is under indictment, and the judge, in the proper circumstances, has to power to deny him bail while he awaits trial.

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[1] Url: https://www.dailykos.com/stories/2023/10/3/2197230/-NY-Civil-Fraud-Trial-Why-Trump-Is-So-Angry-What-Judge-Engoron-Should-Do-To-Enforce-Gag-Order?pm_campaign=front_page&pm_source=more_community&pm_medium=web

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