Ever since former President Donald Trump predicted his arrest with calls to “PROTEST,” authorities reported bomb threats in lower Manhattan courthouses, and Manhattan District Attorney Alvin Bragg, whom Trump called an “animal,” received an envelope with white powder inside and an envelope threatening to kill him, and that barely scratches the surface of abusive and racist messages he’s received.
Federal and local authorities have been bracing for the unprecedented challenge of securing a lower Manhattan criminal courthouse for the arraignment of a former president. That mission will be all the more daunting in light of protests organized by his staunch ally, Rep. Marjorie Taylor Greene (R-Ga.). Trump continues to ratchet up his rhetoric with attacks on the DA and the judge.
Given the combustible situation, some might think that a judge would be inclined to muzzle Trump to cool the temperature and avoid tainting the jury pool. Some experts, however, warn that the legal question isn’t a slam dunk and any request by the DA for a gag order would encounter headwinds.
Asked if he would oppose any request for a gag order, Trump’s attorney Joe Tacopina told Law&Crime: “Of course.”
“Trump being Trump”
Attorney Ken White, a First Amendment expert known by his nom de plume “Popehat,” noted that such a battle would play right into Trump’s hands.
“I think that’s what Trump and his team want — to reframe this as a fight over free speech,” said White, who is also a former federal prosecutor. “The standard for gag orders is tough and the law is not as clear as it could be and it would be a Trump victory to make that the debate.”
New York judges certainly have the right to silence a defendant and his lawyers — and have done so in two high-profile cases. Harvey Weinstein’s judge gagged his defense team after one of the lawyers wrote an op-ed, just before deliberations, urging a jury to acquit her client. Rapper Sean “P. Diddy” Combs was also found in violation of a gag order in 2001.
Trump’s case raises the stakes considerably. Weinstein and Combs weren’t running for president.
White hopes that Bragg avoids such a historic First Amendment fight.
“The thing is there is no juror who is going to be swayed by Trump being Trump at this point,” White told Law&Crime in a text message. “It’s priced in.”
That battle, however, could be thrust upon the court.
“Now if he started threatening jurors or witnesses that would be another thing,” White added.
That’s far from a fanciful hypothetical. Trump has been accused in both of his impeachments of witness tampering. In a recent ruling, a federal judge justified an anonymous jury in E. Jean Carroll’s lawsuit accusing Trump of rape because the former president’s attacks on the justice system are well-documented.
“Mr. Trump repeatedly has attacked courts, judges, various law enforcement officials and other public officials, and even individual jurors in other matters,” Senior U.S. District Judge Lewis Kaplan wrote in his ruling shielding the jurors’ identities.
“A very difficult choice”
In Washington, D.C., Trump’s ally Roger Stone was gagged after circulating an image of the federal judge presiding over his case with apparent crosshairs near her head, but White says that the two cases are different. Stone’s gag order was “intertwined” with his bail, and New York does not have bail for non-violent felonies.
Even in Stone’s case, White believes that U.S. District Judge Amy Berman-Jackson was “probably exceeding her power,” but in that case, the gag was extended from a narrower order.
“One reason gag orders are not a well-developed area is that they are rarely appealed because there’s rarely a good procedural opportunity to do so,” White said.
Manhattan Supreme Court Justice Juan Merchan could impose one with or without a request from Bragg, and the former president has attacked him openly and repeatedly as a “Trump Hating Judge.”
For former federal prosecutor Mitchell Epner, the issue is less about Merchan’s power than his discretion.
“If there’s an order entered, then the court is left with a very difficult choice,” said Epner, who is now a partner at Rottenberg Lipman Rich PC. “He can either not enforce the order, which makes the court seem impotent, or it could attempt to enforce the order with sanctions that could include things like pretrial home detention or pretrial jail detention. Those things would massively impact current American politics.”
Law&Crime legal analyst, Julie Rendelman, a former homicide prosecutor in Brooklyn, predicted that prosecutors would request modest restrictions on Trump’s pretrial speech.
“Yes I believe a gag order will be requested but it will be limited in scope,” Rendelman said, adding that the same order would bind both defense and prosecution.
In light of First Amendment protections, Rendelman noted, drawing that line may be difficult, but she believed Merchan could order Trump not to make violent threats. At one point, after news of the impending indictment was made public, Trump shared an image of himself holding a baseball bat next to Bragg.
The narrower a gag order is, the more likely it is to withstand appeal, legal experts say.
Gag orders are so rare, however, that Rendelman never encountered one in her two decades inside the Kings County District Attorney’s office. Neither has former Manhattan prosecutor Diana Florence, who spent roughly 25 years inside the New York County District Attorney’s office, the same one that’s now prosecuting Trump.
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