New York Judge Threatens To Sanction Trump Lawyers If They Don’t Stop Shouting WITCH HUNT

Here’s something you never want to be on the receiving end of:

Dear Counselors:

Upon thoroughly reviewing the papers in support of some defendants’ pending motions to dismiss, this Court is considering imposing sanctions for frivolous litigation against attorneys from Habba Madaio & Associates LLP; Continental PLLC; and Robert & Robert PLLC, for setting forth the same legal arguments that this Court previously rejected (i.e., standing to sue, capacity to sue, the Mazars’ disclaimers, and the “witch-hunt” argument). As this Court alluded to at the oral argument on the preliminary injunction, said defendants are making the same arguments based on the same facts and the same law, and thus would appear to be subject to issue and/or claim preclusion (law of the case).

As 22 NYCRR 130-1.1 provides that, before a court may sua sponte order sanctions, the attorney(s) must be given a reasonable opportunity to be heard, please consider this email such reasonable opportunity. Counselors have until tomorrow to respond.

Justice Engoron

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On Wednesday evening, New York Supreme Court Justice Arthur Engoron sent this little love note to lawyers for the Trump family and the Trump Organization in response to motions to dismiss the civil complaint brought by Attorney General Letitia James alleging years of fraud at the former president’s eponymous company. The motions rehash the same legal and non-legal arguments already rejected by the court in the argument over the preliminary injunction — an argument Team Trump lost — not to mention the years-long dispute over discovery that precluded the enforcement action.

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In plain English, the court would like these people to stop filing obnoxious, dilatory motions screaming that Tish James is conducting a witch hunt motivated by personal bias and her own political ambitions.

It’s a little late to be arguing that the case is the “culmination of a pretextual and politically-motivated prosecution which threatens to contravene statutory predicate, indelibly alter the NYAG’s enforcement authority, and violate the Defendants’ constitutional rights,” when the court has already ruled that, “In the absence of an injunction, and given defendants’ demonstrated propensity to engage in persistent fraud, failure to grant such an injunction could result in extreme prejudice to the people of New York.”

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And when the court has previously held that “The parens patriae doctrine provides a basis for a State to bring an action against a defendant whose conduct has or will impact the health or well-being of the State’s citizens,” the horse is pretty well out of the barn on the claim that “private dealings between sophisticated parties are simply not within the purview of its regulatory power, nor does the NYAG have the standing or capacity to intervene in such transactions.”

In response to the court’s email, Trump’s lawyer Alina Habba argues that she was absolutely obliged to repeat her prior arguments, with dozens of attached exhibits, to preserve the issue on appeal.

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“There was and is no intention to prolong or delay these proceedings, only a requirement that counsel preserve the record even given the Court’s prior disagreement with certain legal arguments,” she protests. “That is at the core of an advocate’s responsibility at this early stage in the litigation and what is required of the Defendants under applicable law.”

Habba goes on to make a very odd argument that the court’s repeated rulings that the Attorney General really does have jurisdiction to bring this case and really isn’t engaged in prosecutorial misconduct do not preclude her continuing to litigate it over and over because a preliminary injunction imposing a monitor on the company is not a final order — as if she’s being threatened with sanctions for making a losing argument, as opposed to one that is totally frivolous.

Unsurprisingly, the state defendants do not agree with Habba’s position, noting that “the form of the rehashed arguments here appears calculated to delay the proceedings and needlessly divert the parties’ and court’s resources. Simply noting the earlier arguments in their papers for the stated purpose of preserving appellate rights would have been sufficient.”

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They take no position on the unsubtle implication in Habba’s response about the propriety and/or legality of Justice Engoron’s threat. If Habba wants to assert that the court’s letter is “based on a flawed legal premise”  and “raises questions which eclipse that of whether counsel acted frivolously,” then she can have all the rope she wants.

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Liz Dye lives in Baltimore where she writes about law and politics.

Topics

Alina Habba, Arthur Engoron, Donald Trump, Government, Letitia James