On January 4, as the court sought logistical details for the upcoming closing arguments in Trump’s New York fraud trial, former Florida Solicitor General Chris Kise — who left a perfectly good Biglaw partnership to represent Trump, nonchalantly dropped this ticking time bomb, “additionally, president trump plans to present argument at closing as well.”
This kicked off a string of correspondence — available here — that was all very, very stupid.
Traditionally, defendants don’t make closing arguments unless they’re pro se, something that Kise surely knew before trying to slip this past the goalie complete with casually failing to capitalize “president trump.”
You miss 100% of the shots you don’t take, amirite?
Shocking absolutely no one, the NYAG’s office noticed the request and responded less than 5 hours later:
Mr. Trump is certainly not permitted to do so as of right. Under the CPLR if a party “appears by attorney such party may not act in person in the action except by consent of the court.” CPLR 321(a).
That said, the letter notes that Justice Arthur Engoron could grant an exception to this rule as long as it would not disrupt the administration of justice. And had this been a jury trial, the judge would have almost certainly dropkicked Trump’s request into the stratosphere. However, given that this is a bench trial, Engoron offered the defendant some flexibility in his next day response:
Particularly in a non-jury trial, I am inclined to let everyone have his or her say. Moreover, the more reasoned analysis I receive, the better I will be able to decide the case correctly. Furthermore, Mr. Trump is the person with by far the most at stake in this enforcement action.
Fair enough. Though, given the nature of the proceedings up until this point, the judge set a few simple ground rules and would grant the request “if, and only if, through counsel by 1/9/2024, and by himself, personally, on the record, just before he speaks, he agrees to limit his subjects to what is permissible in a counsel’s closing argument….”
In relevant part:
1. Commentary on the relevant, material facts that are in evidence, and application of the relevant law to those facts.
2. No new evidence
3. No “testimony”
4. No commentary on irrelevant matters.
5. No campaign speeches
6. No impugning the judge, the court’s staff, the plaintiff, the plaintiff’s staff, or the New York State Court System.
As these are all straightforward rules that, frankly, apply just as well to every attorney giving a closing argument, Kise would obviously have known before sending his quasi-request that his client would be asked to adhere to these rules and must therefore have already prepared Trump to know that his request would only have a hope of being granted based on rules like these.
Oh my sweet summer child, no.
Yesterday, January 9, Kise replied:
further, the preconditions and prior restraints you propose are fraught with ambiguities, creating the substantial likelihood for misinterpretation or unintended violation. for example, the notion he could not comment on the AG, the plaintiff, is simply untenable. moreover, given the history of these proceedings, agreement to such ambiguous limitations will no doubt simply create further disagreements.
“He could not comment on the AG”? What does Kise think happens in an oral argument? Are Florida closings just diss tracks of the prosecutors?
At 1:23, Engoron writes:
Anyone can comment on the arguments of an opposing party or counsel, but may not seek to impugn their character. Of course I will apply common sense if there is any issue or doubt, but I will not let anyone violate the normal rules of courtroom procedure that govern closing arguments.
The limitations I am imposing, in my absolute discretion, are not subject to further debate. Take it or leave it. Please let me know which by 4:00 pm today.
Spoiler, Kise did not respond by 4. At 4:16 Engoron denied the request and at 4:18, Kise asked for an extension.
Usually you ask for those first.
This is also when news outlets started to report that Trump was planning to deliver closing arguments. Who leaked this? Perish the thought that Trump’s legal team might do it despite knowing that they had yet to secure approval from the judge!
Though, as it turned out, Engoron was prepared to offer the defendant a platform. But Trump wasn’t seemingly prepared to agree to the particulars. However, having seen
Justice Alito SOMEONE successfully use a premature leak to lock a court into an opinion, perhaps those “sources” thought Engoron couldn’t possibly deny Trump now that word is out that he’s “planning” to talk.
A few hours after this story started making the rounds, Kise added a request that the closing argument by delayed until January 29 because Melania’s mother passed away. Notably, Kise does NOT respond to the ground rules issue.Mere hours ago, Justice Engoron denied this request given the logistical challenges and ordered the closing to continue tomorrow.
At 10:51 a.m. this morning, Kise wrote back:
Despite the fact that his Mother-in Law, who he was very close to, passed away late last night, President Trump will be speaking tomorrow.
OK, so Trump wrote this, right? Couching the acquiescence as if he’s the one doing the court a favor is classic art of the deal seminar talk and the little “who he was very close to” clause is a hallmark of his style up there with “a lot of people are saying.”
But more to the point, the email asserts “President Trump will be speaking tomorrow” despite Kise being fully aware that he’d confirmed that Trump would comply with the conditions set out by the court. I guess when you’re a star, you assume they let you do it.
Accordingly, this declaratory statement was, of course, news to Engoron, who responded six minutes later:
As I have already indicated to you, if Mr. Trump wishes to speak, pursuant to CPLR 321, you will have to tell me NOW that he will agree to the limitations I have imposed, which go without saying and apply to everyone, and he will have to agree to do so tomorrow, on the record, which should take no more than a minute or two.
An hour later, Kise responds:
This is very unfair, your Honor. You are not allowing President Trump, who has been wrongfully demeaned and belittled by an out of control, politically motivated Attorney General, to speak about the things that must be spoken about.
If it weren’t for the fact that this isn’t in ALL CAPS, I’d think Trump hacked Kise’s email. “To speak about the things that must be spoken about”? No lawyer wrote that. Period.
For no particular reason, this might be a good time to remind NY attorneys of their ethical obligations when clients want to make frivolous arguments. You know… apropos of nothing at all.
Engoron granted Kise another 7 minutes to confirm that Trump would comply with the ground rules if he wanted to speak.
Not having heard from you by the third extended deadline (noon today), I assume that Mr. Trump will not agree to the reasonable, lawful limits I have imposed as a precondition to giving a closing statement above and beyond those given by his attorneys, and that, therefore, he will not be speaking in court tomorrow.
Arthur Engoron is a reasonable man at the very end of his rope, y’all. This case can’t be over fast enough. For his sake.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.