Attorneys for former President Donald Trump are demanding a mistrial be declared in his New York fraud case, claiming the judge and his clerk have subjected the defendants to "tangible and overwhelming" bias and unfair treatment.

The motion for a mistrial makes good on a promise Trump's attorneys made to file it the day he testified in the case on Nov. 6. The announcement capped off an intense day of examination in which Trump — who has frequently criticized New York Judge Arthur Engoron and his clerk — even lashed out at the judge on the witness stand, pointing at him and calling him a "fraud."

In the filing, Trump's attorneys claim that "the Court has abrogated its constitutional responsibility to ensure each Defendant, including President Trump, receives a fair trial free from even the appearance of impropriety and impartiality."

The trial began Oct. 2 and is expected to last through mid-December. Trump, two of his sons and their company are accused of perpetrating a decade of fraud and benefiting by at least $250 million, by submitting inflated valuations of his properties and net worth to banks and insurers.

Trump and his attorneys have repeatedly accused the judge of favoring New York Attorney General Letitia James, a Democrat. Engoron is also a Democrat. He was appointed by then-Gov. Andrew Cuomo to the New York Supreme Court, 1st Judicial District, in 2013, after previously serving as a judge on New York City's civil court. He ran unopposed for the position in 2015, and is serving a 14-year term.

"Indeed, left unchecked, the introduction of such demonstrable pro-Attorney General and antiTrump/big real estate bias into a case of worldwide interest involving the front-runner for the Presidency of the United States impugns the integrity of the entire system," wrote the attorneys for Trump, who is leading polls ahead of the 2024 Republican presidential primaries.

The mistrial motion also accuses Engoron's law clerk, Allison Greenfield, of bias and "co-judging" the case. Greenfield, who is also a Democrat, typically sits next to the judge. During pretrial hearings, she often questioned attorneys for the two sides herself. She and lawyers for Trump have had many heated exchanges over the course of the case.

Trump and his campaign have twice violated a limited gag order put in place Oct. 3, after Trump made a derogatory social media post about Greenfield. He's paid $15,000 in fines related to the gag order violations.

Engoron has said he relies on her for legal research, but the Trump team has complained of being distracted by Greenfield passing "notes" to the judge. On Nov. 2, defense attorney Christopher Kise said in court that he had recently watched proceedings on a closed circuit television feed, observing behavior he said added to his "perception of bias" when a member of his team, Jesus Suarez, was questioning a witness.

"Every time Mr. Suarez was making a point and there was a dialog, there would be notes passed to you," Kise said. "When the Attorney General was speaking, there would be no notes passed to you."

Kise's accusation provoked Engoron's ire that day. He pounded the bench with his fist, narrating the action as he did it.

"That's — I'm going to pound the table —– confidential communications from my principal law clerk. I have an absolute right to it and you don't have any right to see it or question it," Engoron said.

Engoron later barred the attorneys from referring to the notes.

The motion cites the clerk's name eight times, including references to her social media accounts, and they refer to the "Principal Law Clerk" 44 times. Two photos of the judge and his clerk together on the bench taken during this trial were also included in the filing. 

"Once again, Donald Trump is trying to dismiss the truth and the facts, but the numbers and evidence don't lie," a spokesperson for the Attorney General's office said in a statement. "He can keep trying to distract from his fraud, but the truth always comes out."

The mistrial motion comes amid the defense's first week calling its own witnesses in the case, including Donald Trump Jr., who has twice testified. Their defense presentation began after more than five weeks of testimony in the state's case.

Judge Engoron has previously indicated he would deny the request for mistrial, initially urging counsel not to file the request.  

Meanwhile, the seventh week of the civil trial is continuing in Manhattan. 

On Wednesday morning, the judge only acknowledged the mistrial request briefly, asking the government if it planned to respond. That decision, New York prosecutors said, would come by Thursday. If they respond, they will do so with a proposed schedule order that would suggest how long the judge might take to rule on this.

In court Wednesday, the Trump legal team continued with its direct line of questioning of expert witness Jason Flemmons. The forensic accountant and former deputy chief accountant at the SEC was asked a series of questions related to Trump's financial statements and its supporting data used by the outside accounting firm Mazars, and whether its methods were consistent with accounting standards. 

Flemmons testified there were "quite a few" disclosures made in Trump's financial statements related to departures from generally accepted accounting principles. The testimony bolstered the Trumps' defense that they were transparent in compiling the documents, didn't hide departures from accounting standards, and properly advised banks and insurers to perform their own due diligence. 

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  • The Trump Organization
  • Donald Trump
Graham Kates

Graham Kates is an investigative reporter covering criminal justice, privacy issues and information security for CBS News Digital. Contact Graham at KatesG@cbsnews.com or grahamkates@protonmail.com

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