8

On Nov 3, 2023, Judge Engoron issued a gag order to Trump's lawyers barring them (as well as Trump) from speaking about the judge's staff. This is precipitated by Chris Kise's argument that the law clerk Allison Greenfield is "co-judging" the case and as Trump's lawyer he has "to make a record if he sees potential bias."

However, in Judge Engoron's order he made the argument that their frequent communication is "of particular trust and confidence", likening it to "the kind of professional interchange that might be found between long-time colleagues in a law firm."

My question has to do with how the US court system draws the line between legitimate vs. improper contribution that a law clerk can provide to the judge, and whether any of those communication should be recorded as part of the case for later review, potentially by a higher court. One possible factor is that this case is a bench trial where the judge is also the jury. Since the defendants cannot benefit from protection afforded them by the many rules regarding selective evidence presented to the jury and of the jury selection itself (which protects them from bias) maybe there are rules that can protect the defendants in lieu of this?

2 Answers 2

25

Short of forging the judge's signature or acting with a conflict of interest, there's really not much a law clerk can do to "improperly" contribute to the judge's work.

Although Trump's lawyers are going bananas about this woman, I'd say from my experience that there's literally nothing going on here that any experienced litigator would be surprised to see.

Law clerks are frequently called on to essentially review and decide cases independently, with the judge simply reviewing their memo or draft opinion to determine whether he agrees with it. Law clerks -- and even non-lawyer staff -- frequently whisper in the judge's ear during proceedings with observations or the results of on-the-spot research related to whatever might be happening in the courtroom.

Ethical canons require strict confidentiality around these discussions, so they are basically never part of the record, and therefore basically never subject to appellate review.

This makes sense, because in the end, the judge is the one responsible for the decision. If he gets something wrong, the fact that a law clerk gave him bad advice doesn't do anything to change that.

6
  • 7
    Thank you. This further confirms that Trump's lawyer is doing improper rhetoric, then, to throw doubt on the process and to distract the case from the real issue? Nov 8, 2023 at 15:14
  • 1
    That's what it seems like to me.
    – bdb484
    Nov 8, 2023 at 15:20
  • 5
    @GratefulDisciple - think about the US Supreme Court. Every case is a bench trial and , reportedly, law clerks have significant participation in the research that goes into deliberations. A clerk in the courtroom isn’t really different than a clerk in chambers, just more visible. Nov 8, 2023 at 15:54
  • 5
    The law presumes that the defendant does, in fact, enjoy that benefit in the bench trial, as the judge knows what evidence he should and should not be taking into account.
    – bdb484
    Nov 8, 2023 at 16:13
  • 1
    It seems likely to me that the judge may delegate research on the admissibility of evidence to the clerk, in either form of trial.
    – Barmar
    Nov 9, 2023 at 15:05
11

For a comparative perspective, I present the situation in Canada, which seems to match bdb484's answer for the U.S.

Communication between a judge and their law clerk within the scope of the judicial function is absolutely privileged and confidential. These are rights of the judge for the benefit of the public by ensuring an independent judiciary. Those communications with a law clerk cannot be compelled to be disclosed in any proceeding.

Law clerks never co-judge. Any decision is always that of the judge.

6
  • Thank you for the response, but I'm asking whether there is any limit (in the US court system) that caused Trump's lawyer to cry "bias". There are so many rules about witnesses, evidence, and jury selection, and since this is the case where the Judge is also the jury, I would think there is also a guideline for proper "teaming up" between law clerks and the judge they work for. Nov 8, 2023 at 15:12
  • 5
    @GratefulDisciple the idea of clerks "teaming up" is as real as most of Trimp's arguments, or to say it clear: BOGUS.
    – Trish
    Nov 8, 2023 at 15:28
  • Asking for a clerk-judge private conversation to be made public would then open themselves up to every private conversation between a defendant and their lawyers in the courtroom to be open for public dissemination as well. Those attorney-client conversations are obviously privileged private conversations, the same as between a judge and their clerk.
    – Milwrdfan
    Nov 9, 2023 at 15:29
  • 2
    @Milwrdfan: it's not obvious that there is any equivalence there.
    – Ben Voigt
    Nov 9, 2023 at 20:15
  • @BenVoigt Why not? The defense attorney is a lawyer employed by the defendant. The law clerk is a lawyer employed by the court.
    – A. R.
    Nov 10, 2023 at 15:31

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .