The partial lifting of President Trump’s gag order will allow him to forcefully denounce two of his biggest antagonists, the porn star Stormy Daniels and his former attorney, Michael Cohen, at his debate against President Biden on Thursday. The ruling by the presiding judge in the hush money case, Juan Merchan, marks a victory for the 45th president.
“I’m finally FREE to talk about the RIGGED trial that convicted me in New York,” Trump said at a fundraising event on Tuesday, according to the New York Times, “JUST IN TIME FOR MY DEBATE WITH CROOKED JOE!”
When making his case that his trial was “rigged,” Trump will still be restricted from criticizing Judge Merchan’s adult daughter, Loren. Trump has used Ms. Merchan’s career – she has done campaign work for some of Trump’s most devout adversaries, such as Vice President Harris and Representative Adam Schiff – as a key example of why, in his view, Judge Merchan is hopefully biased and should recuse himself.
In partially lifting the gag order, Judge Merchan sided with both the defense and the prosecution. The Manhattan district attorney, Alvin Bragg, had recommended a partial lift with just days to go before the debate, despite not being under a deadline. In his Tuesday ruling the judge wrote that “the basis for the issuance” of the gag order had been “to protect the integrity of the judicial proceedings.” But he recognized that “circumstances have now changed. The trial portion of these proceedings ended when the verdict was rendered, and the jury discharged.”
Trump was convicted on 34 felony counts on May 30, making him the first former president in the history of America with a felony conviction. Mr. Bragg had charged Trump with falsification of business records in a scheme to interfere with the 2016 election. At the heart of the case was a $130,000 hush-money payment Cohen made to Stormy Daniels, whose real name is Stephanie Clifford, in 2016 to buy her silence about her claim that she had a single sexual encounter with Trump at a celebrity golf tournament at Lake Tahoe in 2006. The prosecution accused Trump of directing Cohen to wire the money to Ms. Clifford and then disguising his reimbursement to Cohen as a legal fee. Trump denies all charges and says he never had sex with Ms. Clifford.
On March 26, two weeks before the historic trial began, the judge issued a limited gag order on Trump, prohibiting him from “making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding.” He imposed the restriction after the prosecution had submitted evidence that Trump supporters were making violent threats against participants in the case who Trump had publicly criticized. The gag order further included jurors, counsel, court staff and their family members. It did not include the judge himself nor the district attorney, nor their families.
But on April 1, the judge extended the gag order to protect his own family members and those of the district attorney, after Trump verbally attacked Ms. Merchan, claiming she maintained a Twitter account whose profile picture showed the 45th president behind bars. Court officials claimed, Ms. Merchan had not used the account for years, had not added the carceral image of Trump, and that the account must have been co-opted by a hacker. Indeed, while the controversy raged, the holder of the account swapped out the Trump picture for one of Ms. Harris as a child.
“This pattern of attacking family members,” the judge wrote in his April 1 ruling, “injects fear in those assigned or called to participate in the proceedings, that not only they, but their family members as well, are ‘fair game’ for Defendant’s vitriol.”
Nonetheless, Trump continued to make public statements and was consequently held in contempt of court. Judge Merchan found that he violated the gag order on ten instances during and before the trial. He fined the former president $1,000 for each violation with a total sum of $10,000. He also threatened to jail Trump if “necessary and appropriate” should he disrespect the order again.
Shortly after that hearing, Trump took to Truth Social to denounce Judge Merchan as “highly conflicted” and accused him of “rigging” the 2024 election.
If Trump chooses to make that point by criticizing Loren Merchan during the debate, he could theoretically face incarceration.
Trump’s defense attorneys challenged the restriction and the fines at a mid-level appeals court, arguing that the gag order violated their client’s First Amendment Right, especially as he campaigns in the current presidential election. “The unconstitutional features of the gag order are causing ongoing, irreparable harm to Petitioner and the voting public under the New York and U.S. Constitutions,” defense attorneys wrote.
The Appellate Division First Department heard oral arguments on April 10 and a single judge denied Trump’s request. On April 23, a full panel of five appeals court judges upheld the rejection. In their written decision, the judges reasoned that Trump’s right to free speech had been “properly weighed against the court’s historical commitment to ensuring the fair administration of justice in criminal cases, and the right of persons related to the criminal proceedings from being free from threats, intimidation, harassment, and harm.”
Trump’s attorney then brought the matter to the highest court in New York, the Court of Appeals, which refused to hear the case because it lacked a “substantial constitutional question,” the court decided.
After the trial ended, Trump’s attorneys turned to the judge, who originally issued the order, and urged him to lift it before Trump heads into his first presidential debate on June 27.
“Now that the trial is concluded, the concerns articulated by the government and the Court do not justify continued restrictions on the First Amendment rights,” Trump’s attorneys, Todd Blanche and Emil Bove, wrote in a pre-motion letter on June 4, empathizing that the upcoming presidential debate “on the qualifications of candidates is at the core of our electoral process and the First Amendment freedoms, not at the edges.”
In their formal motion, the attorneys accused Mr. Bragg of aiding President Biden in a scheme to silence Trump during the upcoming debate by asking the judge to keep the gag order intact. “Such an unlawful restraint would be egregious here, where District Attorney Bragg is seeking to help President Biden and his political associates by asking the Court to silence President Trump during and after the upcoming presidential debate,” defense attorneys wrote in last week’s filing. “Worse still, the District Attorney is pursuing that strategy in a case he claims, falsely, is about influencing the 2016 election by allegedly withholding information from voters. The irony is palpable.”
But on Friday, prosecutors rejected Trump’s claim that “the District Attorney is acting in concert with defendant’s electoral opponent and an unspecified ‘cast of associates’ in an effort to restrict defendant’s speech at an upcoming presidential debate.” They agreed to lift the restriction regarding public comments about the witnesses. They did, however, ask the judge to keep the gag order for all other parties until Trump is sentenced on July 11.
Although Judge Merchan found that “it would be this court’s strong preference” to keep the gag order until sentencing, he found that he could not do so under the law, “the Court cannot do so on what is now a different record than what the appellate courts relied upon when they rendered their rulings.”
He ruled, in the defense’s favor, and lifted the restriction on public statements about witnesses and the jury, while upholding a separate order prohibiting the disclosure of personal juror information, and Trump from publicly attacking jurors by name, since there is “ample evidence to justify continued concern for the jurors,” Judge Merchan wrote. The gag order will be lifted in its entirety after Trump is sentenced on July 11. Mr. Trump remains under gag order, however, imposed by Judge Tanya Chutkan in Special Counsel Jack Smith’s election interference case. Though Trump is not under gag order in his Florida case, where he is accused of keeping White House documents at his Mar-A-Lago residency, he is prohibited from discussing the case with any witnesses or his co-defendants, except through counsel. A separate order bars him from sharing any discovery materials in the case, and states Trump can only access information under direct supervision of his defense counsel.
MARIE POHL
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