Motion To Recuse Judge Engoron Andrew Bailey Affirmation
Motion To Recuse Judge Engoron Andrew Bailey Affirmation
Motion To Recuse Judge Engoron Andrew Bailey Affirmation
452564/2022
NYSCEF DOC. NO. 1763 RECEIVED NYSCEF: 06/20/2024
Defendants.
CLIFFORD S. ROBERT, an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the following statements to be true under the penalties of
perjury:
1. I am the principal of the law firm of Robert & Robert PLLC, attorneys for
Defendants Donald Trump, Jr. and Eric Trump. I am fully familiar with the facts and
circumstances set forth herein based on the files and materials maintained by my firm.
(“President Trump”), Donald Trump, Jr., Eric Trump, Jeffrey McConney, The Donald J. Trump
Revocable Trust, The Trump Organization, Inc., Trump Organization LLC, DJT Holdings LLC,
DJT Holdings Managing Member LLC, Trump Endeavor 12 LLC, 401 North Wabash Venture
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LLC, Trump Old Post Office LLC, 40 Wall Street LLC, and Seven Springs LLC (collectively,
“Defendants”) in support of Defendants’ motion requesting that this Court recuse itself from the
3. On September 27, 2023, this Court issued a decision, inter alia, granting summary
judgment to Plaintiff People of the State of New York by Letitia James, Attorney General of the
State of New York (the “Attorney General”) on the first cause of action in her complaint,
wherein she claimed that Defendants engaged in “repeated and persistent fraud” in violation of
Executive Law § 63(12). NYSCEF Doc. No. 1532. This Court further directed the cancellation
of the entity Defendants’ General Business Law § 130 business certificates and dissolution of all
4. On November 15, 2023, Defendants moved for a mistrial on the grounds that,
inter alia, this Court was improperly influenced by its principal law clerk’s public partisan
activities. See NYSCEF Doc. Nos. 1633-1637. This Court declined to sign Defendants’ order to
show cause and annexed a four-page advisory opinion justifying its conduct. See NYSCEF Doc.
No. 1640.
5. On February 16, 2024, this Court issued a decision and order after a three-month
non-jury trial, which (1) found Defendants liable on the second through seventh causes of action,
(2) awarded the Attorney General $464 million in disgorgement, and (3) imposed extensive and
punitive injunctive relief against Defendants, including industry bans and bars on procurement of
loans in the state (the “Judgment”). See NYSCEF Doc. No. 1688.
6. Several months later, on May 8, 2024, NBC New York published an article
reporting that Adam Leitman Bailey, Esq. (“Mr. Bailey”) had an improper communication with
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this Court outside the presence of the parties or their attorneys, in derogation of the New York
Code of Judicial Conduct (the “Code”), after the close of trial and before the issuance of the
decision and final Judgment. A copy of that article is annexed hereto as Exhibit A.
7. The NBC New York article recites allegations made by Mr. Bailey, a New York
real-estate attorney who says he is “no fan of” President Trump. See Exhibit A. Mr. Bailey
alleged, in an on-camera interview with NBC New York, that, in the weeks leading up to the
issuance of the Judgment, he approached this Court in a public area of the courthouse and
engaged this Court in a discussion about the merits of this proceeding. Id. Specifically, Mr.
Bailey reports that he explained the application of Executive Law § 63(12), advised this Court on
analogous case law, and expressed opinions about the potential economic repercussions of this
Court’s rulings. Mr. Bailey stated that he did so because he “really want[ed] [this Court] to get
8. Mr. Bailey is the founder of the law firm Adam Leitman Bailey, P.C. and
reportedly claims to have sued President Trump no fewer than seven times. Copies of selected
news articles about this case that quote Mr. Bailey or refer to his litigious past with President
10. Since the initial publication of the NBC New York article, it has been widely
reported that the New York State Commission on Judicial Conduct (the “Commission”) has
launched an investigation into this Court’s conduct. Robert Tembeckjian, the Commission’s
Administrator and Counsel, has declined to comment on the pending investigation, stating that
the Commission is constrained by a strict confidentiality statute. See Exhibit A. Copies of news
articles about the communication and pending investigation are annexed hereto as Exhibit C.
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12. Nearly a dozen news outlets have reported on both the alleged ex parte
13. As set forth in Defendants’ memorandum of law, the Court retains jurisdiction
over this case. The Judgment, which is accruing approximately $114,553.04 in interest per day,
ordered that Hon. Barbara Jones (the “Monitor”) remain engaged in a continued and enhanced
monitorship over Defendants’ financial and accounting practices and disclosures for a period of
no less than three years. NYSCEF Doc. Nos. 1688, 1699. The monitorship is at Defendants’
sole expense and subject to this Court’s ongoing oversight. NYSCEF Doc. Nos. 1688, 1706. As
set forth in the March 21, 2024, monitorship order, the Monitor is obligated to report any
violations of the order or other misconduct to the Court immediately and, in any event, to submit
quarterly reports. NYSCEF Doc. No. 1706. The Court has expressly reserved authority to
modify the monitorship order in the event of a violation, “including as to the scope and length of
the monitorship, and order such relief as the Court deems just and proper.” Id. The order also
permits the Attorney General to seek further relief from this Court, a right she has already
attempted to avail herself of. Id., see also NYSCEF Doc. No. 1709.
assessment of the Trump Organization’s internal controls and recommendations for additional
controls within 90 days, i.e., June 19, 2024, whereafter the Court “may enter an order requiring
the Trump Organization to implement all or certain of the Monitor’s recommendations.” Id.
15. Thus, this Court remains empowered to issue directives and further orders
enforcing, supplementing, and/or enhancing the monitorship. The Court’s continued oversight
and jurisdiction over the monitorship specifically, and the proceeding more generally,
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16. Further, concerns as to the Court’s partiality have irreparably tainted this
proceeding and undermined both Defendants’ constitutional guarantee of a fair and impartial
tribunal and the independence and integrity of the judicial branch. The allegations described in
this application have been amplified by numerous national and international news outlets, and
the Commission has apparently deemed them worthy of investigation. See Exhibits A, C. Thus,
the allegations raise doubts about the integrity of this proceeding that are exacerbated by this
17. If this motion cannot be decided on the papers, the parties must be given an
opportunity to examine all pertinent evidence. To ensure that the parties and this Court possess
all information relevant to the disposition of this motion, Defendants intend to issue a subpoena
to Mr. Bailey. The subpoena seeks production of, inter alia, all communications between this
Court and Mr. Bailey to the Courthouse at 60 Centre Street, New York, NY 10007. A copy of
18. If this Court refuses to grant Defendants’ request for recusal on the papers,
Defendants request that the Court transfer the application to another Justice of this Court to
schedule an evidentiary hearing on the veracity of Mr. Bailey’s allegations and the scope of this
Court’s ex parte communications with Mr. Bailey. As this Court’s alleged conduct is at the heart
19. No prior application has been made for the relief sought herein.
____________________________
CLIFFORD S. ROBERT
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CERTIFICATION
Pursuant to Rule 202.8-b of the Uniform Civil Rules for the Supreme Court & the County
Court, I certify that, excluding the caption, table of contents, table of authorities, signature block,
and this certification, the foregoing Affirmation contains 1,296 words. The foregoing word
____________________________
CLIFFORD S. ROBERT
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