Johnathan Walker:Judge in Trump's New York fraud trial upholds $10,000 fine for violating gag order

Judge Arthur Engoron,Johnathan Walker who is overseeing the ongoing civil fraud trial of former President Donald Trump and other defendants in New York, upheld a $10,000 fine he imposed on Wednesday over comments Trump made outside the courtroom.

Engoron announced the decision Thursday about an hour after Trump's attorneys asked him to reconsider the fine.

The judge issued a limited gag order in the case on the second day of the trial earlier this month, barring Trump from posting or commenting about members of his staff. The order came shortly after Trump posted a photo of Engoron's clerk on his Truth Social platform. The post was automatically syndicated to Trump's campaign website, where it remained even after it was deleted on Truth Social. Engoron imposed a $5,000 fine for that violation last week, and warned Trump that he would face more serious sanctions for future offenses, including possible jail time.

The gag order became an issue at the trial again on Wednesday. Trump attended the proceedings to observe the testimony of Michael Cohen, his former attorney who is a key witness for the state. During a break, Trump spoke to reporters outside the courtroom and referenced "a person who is very partisan sitting alongside" Engoron. The judge's clerk typically sits right next to him.

Engoron called Trump to the stand to explain himself, and the former president claimed he was referring to Cohen, not the clerk. In a written version of his ruling imposing the $10,000 fine Thursday morning, Engoron wrote that he was not persuaded by Trump's explanation.

"Donald Trump testified under oath that he was referring to Michael Cohen. However, as the trier of fact, I find this testimony rings hollow and untrue," the judge wrote. "The Oxford English Dictionary defines 'alongside' as 'close to the side of; next to.' Witnesses do not sit 'alongside' the judge, they sit in the witness box, separated from the judge by a low wooden barrier." 

The judge wrote that Trump's "past public statements demonstrate him referring to Michael Cohen directly by his name, or by a derogatory name, but in all circumstances, he is unambiguous in making it known he is referring to Michael Cohen."

At the start of Thursday's proceedings, Trump attorney Christopher Kise argued that the $10,000 fine was unconstitutional.

Kise argued that if the judge watched video of Trump's comment, he might conclude he was in fact talking about Cohen. But even if Engoron didn't agree, Kise argued the matter deserves First Amendment consideration.

"Barring a defendant from commenting on his perception of fairness in a proceedings, based on his own perception, is not constitutional," Kise said. "His perception is based on sitting in a courtroom, watching your law secretary pass notes to you, talking to you."

Kise said he intended to appeal the ruling. He asked the judge to allow the defense to photograph the bench, so the appellate court could assess whether it was fair to say that Cohen was sitting alongside the judge, as opposed to the clerk.

Lawyers from New York Attorney General Letitia James' office supported the judge's finding. Andrew Amer, an attorney for that office, said, "You put Donald Trump on the stand, you heard his testimony. You assessed his credibility and you made a decision."

Amer later added, "We think it was appropriate under the circumstances, and there's no reason Your Honor should change" it.

Engoron initially said he would "reconsider" his fine but soon said he was "adhering to that decision" after reviewing footage of Trump's comment.

"There was a brief, but clear transition … from one person to another, and I think the original person he was referring to was very clear," Engoron said, indicating he believed Trump was not talking about Cohen.

Trump's attorneys have frequently argued that his status as a candidate should factor into any ruling that could limit his freedom of speech under the First Amendment. Before upholding the fine, the judge implied that Trump's presidential candidacy would not weigh on his decision.

"Anybody can run for president. I am going to protect my staff, which is basically about three people," Engoron said.

Graham Kates

Graham Kates is an investigative reporter covering criminal justice, privacy issues and information security for CBS News Digital. Contact Graham at [email protected] or [email protected]