Opinion: Trump’s refusal to follow gag order could cost him
Opinion by Norman Eisen
(CNN) — Perhaps the most striking thing about Monday’s opening of former President Donald Trump’s criminal trial was the juxtaposition between the extraordinary and the humdrum, with the judge and jury going through all the usual motions that I have seen hundreds of times – but doing them with a former president in the dock for the first time ever.
Tuesday morning, however, will be something I have never seen before in my three decades of criminal law practice. After court comes into session at 9:30 a.m., Justice Juan Merchan will weigh the prosecution’s request that he find Trump in contempt of court and sanction him for 10 alleged violations of the gag order for verbally attacking witnesses and even jurors. Seven of the 10 came after Trump was put on notice of the gag order hearing and were rolled into it. A possible 11th incident happened after court Monday and may be referenced, if not formally sanctioned.
Based on my legal analysis of the relevant New York law and the 10 statements at issue, I think Merchan will very likely sanction at least some of the misconduct. (This essay adapts arguments developed in that comprehensive analysis.) To begin with, the gag order prohibits Trump from making or directing others to make public statements about witnesses, the prosecution’s legal team and staff (other than District Attorney Alvin Bragg), jurors, court staff or the families of court or prosecutorial staff.
Among those statements cited by the prosecution is Trump’s April 10 Truth Social post referencing Stormy Daniels, to whom he allegedly arranged the payment of hush money, and former Trump attorney Michael Cohen, who facilitated those payments. In the post, Trump called them “two sleaze bags who have, with their lies and misrepresentations, cost our Country dearly!” The prosecution also cites another Truth Social post, just three days later, in which Trump targeted his former fixer, writing, “Has disgraced attorney and felon Michael Cohen been prosecuted for LYING? Only TRUMP people get prosecuted by this Judge and these thugs! A dark day for our Country.”
The prosecution is asking that Merchan hold Trump in contempt for those statements plus eight others, and wants the judge to order sanctions including a $1,000 fine per statement – and a warning that Trump risks up to 30 days in jail for any future violations.
Trump will likely raise a slew of defenses but there’s one that we can expect him to advance the most aggressively – one that highlights the unique nature of this case. He’ll almost certainly try to argue that his posts aren’t threatening; they’re just defending himself against attacks that impact his campaign. That is something that Trump as a leading presidential candidate will undoubtedly claim he is well within his First Amendment right to do.
His lawyer Emil Bove has already articulated that argument in court, claiming that Trump’s posts targeting Cohen “are political in nature and intended to defend against what Mr. Cohen is saying in connection with the campaign” and that, because the gag order does not preclude Trump “from responding to political attacks,” they pose no violation of the order.
Trump’s right to political speech is of course protected by the First Amendment. Indeed, that’s partially why the gag order’s restrictions are so narrowly tailored. But the problem for him, is that right is not absolute in a criminal proceeding. As the Court found in issuing the gag order, Trump’s history of attacking his perceived foes presents a serious threat to the safety of witnesses and jurors (among others) and thus to the integrity of the trial. As a matter of law, that warrants these narrow restrictions.
Moreover, the comments at issue concern the trial and are not in regard to Trump’s presidential campaign – at all.
Merchan has demonstrated that he’s a fair and thoughtful jurist, and he often seeks compromise. I expect his ruling to reflect this larger tension that’s symbolized by candidate-defendant Trump. The judge may split the baby and order sanctions for some but not all of Trump’s statements.
For example, he might say that Trump simply quoting others without any editing, as he does in some of the postings, was not a sufficiently clear violation of the order – but then clarify in strong terms that should never happen again.
And for other posts, expect Merchan to come down hard, levying fines and warning of additional consequences and even confinement if Trump keeps it up. That would be even more extraordinary than this hearing.
The-CNN-Wire
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