As the Democrat’s lawfare strategy against former President Donald Trump continues to crumble around them, whispers of a new scandal are arising, and it could allow Trump’s legal team to call for a mistrial in his civil fraud case.
Justice Arthur Engoron, the judge who ordered Trump to pay hundreds of millions of dollars in penalties in the case, is under investigation following reports that a juror approached him with “legal advice” while the case was ongoing.
The juror in question is high-profile real estate attorney Adam Bailey, who boasted during an NBC New York interview that he had advised Engoron three weeks before the judge ruled on the case.
Bailey claims he offered unsolicited advice to ensure the judge understood the legal intricacies of the case, emphasizing he wasn’t a Trump supporter but wanted the judge to “get it right.” During their conversation, Bailey discussed the law related to the case and argued against using it to shut down a major company.
Judge Engoron, however, denied being influenced by Bailey and maintained his decision was independent.
But not so fast, warns legal experts like Retired Presiding New York Appellate Justice Alan Scheinkman. Scheinkman, currently a professor of legal ethics at Pace University Law School, finds the interaction detailed by Bailey concerning. He warns that the lawyer’s unsolicited remarks during a televised interview, as described, are worrisome and warrant serious consideration.
It’s a warning shared by the New York State Commission on Judicial Conduct, which has opened an investigation into the alleged interaction.
The investigation aims to determine whether rules were violated, as judges in New York are generally barred from considering communications outside the presence of parties in a case. If it is found that Engoron engaged in substantive dialogue with Bailey about the case, it could raise serious concerns.
Trump’s legal team argues that judges should adhere strictly to the code of conduct without exceptions for casual conversations. The investigation seeks to ensure transparency and maintain public trust in the judicial system regarding the Trump civil fraud case.
And for Trump, it has the potential to lead to a mistrial.
A mistrial can occur when significant errors or irregularities during a trial prevent a fair verdict. Grounds for a mistrial include a range of factors. In this case, if Bailey’s conversation affected the judge’s decision-making process, it could be seen as tampering with the judicial process. It could also be an example of prejudicial influence if the conversation appeared biased.
If Engoron engaged in a one-sided communication with Bailey without proper notification to the parties, it could be considered a procedural violation. And lastly, the public’s perception of a fair trial is crucial. If the Bailey-Engoron interaction undermines that perception, a mistrial might be warranted.
If that isn’t enough, it turns out that Bailey was well-known to Engoron before Trump’s case was even heard. While he denies being involved in any aspect of Trump’s civil fraud case or other cases against the former President, he said he knew Engoron after arguing “hundreds of cases” before him.
While Bailey was technically allowed to be a juror in the case, his selection could raise ethical questions. During jury selection, attorneys and judges conduct voir dire, questioning potential jurors to gauge their suitability for jury service. The objective is to select impartial jurors capable of independently evaluating trial evidence without bias.
Several factors can disqualify potential jurors, including personal connections to or prior knowledge of the case, personal biases, or legal backgrounds.
While attorneys have extensive courtroom experience that might qualify them for jury duty, the judge, attorneys, and jurors must carefully evaluate any bias or conflict of interest. If their familiarity with the judge or previous interactions could affect their impartiality, they might be dismissed during jury selection.
In other words, if Bailey was comfortable enough to approach Engoron with unsolicited legal advice, he was most likely not qualified to serve on the jury in Trump’s case. Even if he says he didn’t talk about Trump, the fact that he brought it up matters. If a juror knows the judge personally, it might have affected his judgment.
All this aside, judges aren’t permitted to talk about cases outside of court without both sides being there. Bailey’s talk with Judge Engoron broke that rule, even though he claims the discussion had no impact on his ruling.
Trump’s legal team will most likely seize this opportunity to argue for a mistrial, but the argument will predictably fail at the hands of the New York State Commission on Judicial Conduct. These developments, however, will add new and unwelcome complications for the prosecution in Trump’s upcoming appeal.
