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Why is Elise Stefanik complaining about the judge in Trump’s civil fraud trial?

The mistrial motion some legal observers were expecting never came. Instead, ethical misconduct allegations came into full bloom in Stefanik's letter.

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On Nov. 3, Eric Trump once again arrived at 60 Centre Street in downtown Manhattan, a courthouse “Law & Order” viewers would recognize instantly. He was there, of course, not for a stint as an extra, but for his second day of testimony in the New York attorney general’s civil fraud case against him, his father, his brother Don Jr., and others. And before Eric Trump could retake the witness stand, his dad’s lawyer, Chris Kise, decided to revisit one of his team’s favorite themes: the purportedly partisan bias of Judge Arthur Engoron and his principal law clerk.

But this time, Kise was focused not on how the two interact during the trial but on their conduct outside the courtroom. Alluding to “allegations that I looked at in the news this morning,” Kise insisted there was “at least a plausible basis to have to raise considerations of bias” because of “contributions to partisan political activity” that, in Kise’s description, violate Section 100.5(c)(2) of New York’s Rules of Judicial Conduct. 

At that point, Kevin Wallace, the senior lawyer on the attorney general’s team, seemed confused and asked Kise what report he was referencing. Kise responded, with the caveat that he is not the Trump side’s “internet person,” that he believed it was on the far-right site Breitbart.

Indeed, a Breitbart story published a day earlier aired new allegations about Engoron’s principal law clerk, who has been the subject of multiple attacks by Donald Trump and his legal team that led Engoron to impose a gag order on all of them. Specifically, Breitbart alleged, based on a review of New York State campaign finance data, that the law clerk has made contributions to individual candidates, local Democratic clubs, PACs and the New York County Democrats in amounts and at times that would appear to violate the rule Kise cited.

By Monday, the same day Donald Trump testified, Team Trump went further, telling Engoron that as soon as the AG’s team rested, they intended to move for a mistrial based on unspecified issues that Trump’s lawyers represented would be covered by the gag order but did not relate to their usual complaint: the notes Engoron and his clerk have exchanged. The judge then ordered them to present him with the motion in writing, with a proposed briefing schedule and hearing time, and pledged to return it quickly. Yet no such motion appears on the docket, and a source familiar with the litigation tells me that if such a motion was made under seal or through a similar process, it has not been served on the state.

Nonetheless, the arguments I expected would end up in the promised mistrial motion surfaced on Friday in a different form: a five-page letter to the New York State Commission on Judicial Conduct from House GOP conference chair Elise Stefanik. And although the letter begins with some partial and misleading quotations from a 2022 hearing and a trial day last week, the thrust of Stefanik’s charges of judicial intemperance and partisan bias come from the same Breitbart article initially floated by Kise on Nov. 3. Citing that piece, she accuses both Engoron and his principal law clerk of flouting the rules against partisan political contributions.

Perhaps most interestingly, while Stefanik is many things — a Harvard alumna, a former White House aide, and most recently, a mom — she is not a lawyer. But her letter is heavily footnoted, including with cites to New York cases, including some concerning the statute of limitations, and conforms with conventions of legal citation, including the telltale ibid., a fancy, lawyerly way of citing to the immediately prior source. 

That doesn’t mean, much less prove, Stefanik’s letter was authored by Trump lawyers. But it bears note that the particular method of her complaint and the use of her voice offer some tactical advantages. (Neither Stefanik's office nor a representative for Trump immediately responded to NBC News' requests for comment.)

First and foremost, to the extent that the principal law clerk’s alleged campaign contributions, which we have independently viewed, violate one or more New York rules governing judges and their personal appointees, one lawyer familiar with these rules and their implementation says the remedy for such misconduct would be discipline, not the overturning or invalidation of any decision in the case or even the removal of the presiding judge. Team Trump might have reached the same conclusion and decided against moving for a mistrial.

Second, Stefanik is not only arguably Trump’s most reliable and prominent Republican backer in New York State; she is also a member of Congress who is not subject to the federal Freedom of Information Act. As a result, if her letter was drafted or edited by anyone affiliated with the defense, journalists have no way of uncovering that through the kind of public records requests that, for example, have revealed political machinations between and among executive agencies.

And third, unlike a mistrial motion that Engoron himself could deny virtually on receipt and that would take months if not longer to appeal, a complaint to the state’s judicial conduct commission cannot be dismissed “without authorization by the Commission,” which meets “several times a year.” That means the allegations in Stefanik’s letter could swirl, without any resolution, for some time before the commission can determine whether it warrants investigation or should be dismissed.

Whether, in fact, Engoron and/or his clerk have, in fact, run afoul of the rules on the basis of their contributions remains to be seen. The rules not only allow candidates for judicial office greater latitude in the months before and after their runs, but also pertain only to contributions to political campaigns and “other partisan political activity,” a term that according to my source familiar with the ethics rules, might not include donations to local Democratic clubs, depending on their purpose. 

In the meantime, a spokesman for the New York court system told The New York Times that “Engoron’s actions and rulings in this matter are all part of the public record and speak for themselves. It is inappropriate to comment further.”

Will Stefanik’s letter lead to an investigation or even discipline? Or will it simply fuel the MAGA movement’s ire toward an elected judge and his law clerk? Watch this space.