Tuesday hearing in Trump election interference case to focus on gag order
Opening arguments in The People of the State of New York vs. Donald J. Trump, which is probing alleged election interference and false business records, took place Monday.
“It was election fraud, pure and simple,” New York Prosecutor Matthew Colangelo told the jurors in his opening statement.
The courtoom is serving a different function Tuesday morning.
Judge Juan Merchan will hear prosecution arguments that Trump has repeatedly violated a prohibition against making “extrajudicial statements about trial participants,” colloquially known as a gag order.
For example, on the first day of the trial, April 15, prosecutors argued that Trump had violated the current gag order three times since its implementation on April 1. The judge had amended the February gag order in March and April, each time after Trump violations.
Prior to opening arguments, Trump ranted on Truth Social. He called prosecution witness Michael Cohen a “disgraced attorney and felon” and also made disparaging remarks about prosecution witness Stormy Daniels. Trump shared a post from Michael Avenatti that complained about the gag order; it mentioned Cohen and Daniels by name. Avenatti was convicted of stealing from Daniels while he was her attorney.
He also posted material to his campaign website that violates the gag order.
[The New York County District Attorney] filed a motion seeking a narrowly-tailored gag order to prohibit Trump from making statements outside of court intended to threaten, intimidate or harass jurors, prosecutors, witnesses, or court staff. The motion contended that Trump’s “[a]dvocacy of revenge and retribution against perceived opponents” justified such an order. The motion cataloged Trump’s long history of verbally attacking people involved in legal proceedings against him and his allies, offering examples from this case, the D.C. federal criminal prosecution, the Georgia state prosecution, the NY civil fraud case, and the prosecution of Roger Stone.
On Wednesday April 18, the prosecution identified seven more alleged violations of the gag order. In one Truth Social post, Trump quoted Jesse Watters, a Fox News host: “They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury” (Exhibit J).
How common are gag orders in high profile cases?
I’m guessing that if you’re reading this you haven’t been subjected to a gag order in a felony court case. Like me, you may not be familiar with conditions placed in high profile court cases.
Here’s one example of a high-profile case with a more restrictive gag order than Trump’s (emphasis added):
In the 2004 Michael Jackson child molestation trial, the California Supreme Court upheld a gag order prohibiting Jackson, his accusers, and the attorneys in the case from publicly commenting on the case, except through statements approved in advance by the trial judge.
Similarly, in 1996 Judge Hiroshi Fujisaki issued a “sweeping gag order” in the O.J. Simpson civil trial, prohibiting discussion about the trial “with media or in public places.”
After Roger Stone was indicted in 2019 for contempt of Congress, U.S. District Judge Amy Berman Jackson prohibitted everyone associated with the case from saying anything potentially prejudicial to jurors.
In 2022, Jennifer and James Crumbley, parents of Michigan school shooter Ethan Crumbley, succeeded in their motion to restrict public statements made by the prosecution.
In Idaho last year, it was the defense team arguing for a protective gag order. Their client, Bryan Kohberger, had been charged with the stabbing deaths of four University of Idaho students.
In these examples, the gag order is protecting the right of defendants to a fair trial.
What’s unusual is the defendant’s behavior
Finding that a defendant has overstepped is less common. Yet in 2023, former billionaire crypto trader and FTX founder Sam Bankman-Fried found himself in jail for witness intimidation and violating terms of his release prior to trial.
Also in 2023, Trump faced — and violated — gag orders in the civil defamation case brought by E. Jean Carroll. New York state judge Arthur Engoron fined Trump $15,000 after he violated, two times, a gag order “forbidding public comments about court staff.”
As in todays criminal case, that jury was anonymous due to the defendant’s notorious behavior.
Trump’s habit of attacking the people and institutions seeking to hold him to account is nothing new. During the Russia investigation, he railed regularly on Twitter against Special Counsel Robert Mueller and his “terrible Gang of Angry Democrats.” Mueller’s final report described in depth how Trump used tweets and public statements to alternately butter up friendly witnesses and then attack them viciously when news broke of their cooperation with investigators.
The legal analysis in the report is cagey, but Mueller hints strongly that such actions could well constitute obstruction of justice—an effort to block witnesses from speaking honestly with the special counsel by cajoling and threatening them. And whether or not the conduct rose to the level of obstruction of justice, the report’s factual recitation suggests strongly that witnesses were, in fact, intimidated.
In January 2019, for instance, Michael Cohen canceled his planned congressional testimony, citing threats to his family.
I am not a lawyer, but those writing for Just Security are. As always, Trump is a bit of a crap shoot.
We expect the court to impose fines against Trump for a substantial number of the violations and to warn him that future violations will result in additional fines and potentially jail time.
The most difficult question to answer, however, is whether any finding of contempt and resulting punishment will deter this particular defendant from future violations. Prior history suggests it may. As noted above, as the fines increased together with the risk of incarceration in the civil fraud matter, Trump finally stopped.
On the other hand, he may view a short confinement as politically beneficial. Referencing Justice Merchan, Trump wrote on social media, “If this Partisan Hack wants to put me in the ‘clink’ for speaking the open and obvious TRUTH . . . .I will gladly become a Modern Day Nelson Mandela – It will be my GREAT HONOR.” He had previously stated in October 2023 that “I don’t mind being Nelson Mandela, because I’m doing it for a reason.”
And the amounts of the fines here at issue will not give him pause if he is determined to continue his extrajudicial statements. In the interest of protecting the administration of justice, we must hope for a firm response by the judge on Tuesday morning, and then wait to see what follows from the former president.
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