Former President Donald Trump's legal team filed a motion Thursday calling on New York Supreme Court Judge Arthur Engoron to recuse himself from the Trump civil fraud case.
The 24-page filing said Judge Engoron should step aside in light of a state judicial conduct investigation launched last month. Sources familiar with the investigation said the probe is examining whether Engoron engaged in an improper conversation about the case with an expert real estate lawyer three weeks before issuing his $454 million penalty ruling.
That lawyer is Adam Leitman Bailey, who unexpectedly revealed his alleged interaction with the judge during two taped TV interviews with NBC New York in February.
"I wanted him to know what I think and why…I really want him to get it right," Bailey said, repeating that it had been his intention to advise Engoron about the law in the Trump case and why harsh penalties would be bad for business in New York. Bailey later said he and the judge "never mentioned the word Donald Trump," but when asked if it had been clear which case they had been discussing, Bailey responded "Well obviously we weren't talking about the Mets."
In their motion, the Trump legal team said WNBC's reporting on Bailey's public statements raises questions about outside influence on the judge.
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"Where, as here, this Court's impartiality might reasonably be questioned under the circumstances, it must recuse. Indeed, there is no other means of dispelling the shadow that now looms over this Court's impartiality," the filing states.
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Read the full filing below:
When reached for comment, court spokesman Al Baker said "we have no further comment on this matter." WNBC also reached out to Bailey for a response but has not yet heard back.
Bailey is a high-profile attorney who has coedited textbooks on New York real estate law. His law license was once suspended in part for cursing at opposing litigants. Bailey told News 4 he had a longstanding professional relationship with Engoron, so he approached him in the courthouse to explain to him that a fraud statute at issue in the case was not intended to be used to shut down a major company, especially in a case without clear victims.
"I know he respects my real estate knowledge," Bailey said. "So I gave it to him. I gave him everything I knew. He had a lot of questions, you know about certain cases. We went over it."
A statement from a court spokesman in February did not deny that a conversation had taken place between the judge and the lawyer, but implied the interaction was insignificant.
"No ex parte conversation concerning this matter occurred between Justice Engoron and Mr. Bailey or any other person. The decision Justice Engoron issued February 16 was his alone, was deeply considered, and was wholly uninfluenced by this individual,” said Al Baker, a spokesman for the New York State's Office of Court Administration, in a written statement.
After Bailey's on-camera claims to WNBC and the judge's broad, written denial, the New York State Commission on Judicial Conduct (NYSCJC) opened an investigation last month, according to sources familiar with the matter.
And within weeks, the commission questioned Bailey under oath about his claims. In a statement, NYSCJC Administrator Robert Tembeckjian said "The Commission on Judicial Conduct is constrained by a strict confidentiality statute and has no comment on this matter."
The commission is collecting evidence to determine whether Engoron violated ethics rules, the sources said. These rules generally prohibit judges from discussing pending cases with outside parties, or accepting any expert advice unless it is disclosed to the parties in the case who must be given a chance to respond.
Ethics experts point out that the rules do not prohibit abstract discussions of the law, and that judges are afforded discretion in deciding which contacts must be disclosed.
In their filing, the Trump team said Engoron had "failed to notify" them of Bailey's alleged input, accusing the judge of three months of "obfuscation."
Trump's motion requests a separate evidentiary hearing before a different judge to call witnesses — including Bailey — if Engoron does not agree to recuse himself. Trump's attorney Christopher Kise said they are also issuing their own civil subpoenas seeking communications between Bailey and Engoron.
Sources familiar with the Judicial Conduct investigation say the Commission already asked Bailey to turn over any emails and texts he may have exchanged with Judge Engoron.
Bailey suggested he was texting Engoron seeking intel on his penalty ruling, hours before it was due to be released.
"What's he thinking?" Bailey asked, as he appeared to type on his phone during his on camera interview with WNBC.
"I should text him….He's probably getting bombarded…I'll text him. I wanna get this decision."
The court spokesman declined to tell NBC New York whether Engoron received texts from Bailey inquiring about his Trump ruling before it was issued that day.
Since February, the court spokesman has not responded to any of WNBC's specific additional questions about the duration and nature of the interaction between Engoron and Bailey. For instance, did the judge engage with Bailey or did he try to shut the conversation down?
According to Trump's motion, a judge's responsibility to avoid any appearance of impropriety is heightened "in a case that has commanded worldwide attention."
Several ethics experts and former judges contacted by News 4 say it will likely be the judge's decision whether to recuse himself from the Trump civil case. But they note the existence of a Judicial Conduct investigation does not itself necessitate a recusal.
Former President Trump has repeatedly accused Engoron, a Democrat, of bias. The Trump team unsuccessfully demanded a mistrial in November and has criticized the judge's decisions which are currently on appeal.
Under a lawyer's rules of professional conduct, a lawyer should not "state or imply an ability" to improperly influence a judge, nor assist a judge in violating their own rules. But Bailey emailed WNBC several hours after Engoron issued his penalty ruling on February 16:
"I guess I convinced the judge to change his mind and reverse his ruling on the certificates and selling DT's (Donald Trump's) NY assets. Crazy," Bailey wrote, without offering evidence.
But by the time Bailey approached the judge, there were other forces in play. An appeals court had already put Engoron's initial ruling to revoke Trump's business certificates on hold.
It's not clear why Bailey would disclose in a television interview an effort to advise a judge that could land himself in trouble, according to legal ethics experts consulted for this report. When NBC New York pressed Bailey about the ethics of the conversation he had described, he said he had done nothing improper. So far it is unclear if Bailey is facing any sort of ethics probe for his alleged actions.
Bailey stopped responding to News 4 in February after learning his interaction with the judge might become the subject of our story. In his last email to WNBC in February, he wrote:
"If you do a story about my conversation about the law with the judge, you will harm my reputation with the judge and others. Why is this news?"
