Political Speech | Prior Restraint

Trump’s Lawyers Fight DA’s Request for a Gag Order in His Hush-Money Criminal Case

Donald Trump to testify in New York civil fraud trial
In this Nov. 6, 2023, file photo, former U.S. President Donald Trump leaves the courtroom after attending the Trump Organization civil fraud trial, in New York State Supreme Court in the Manhattan borough of New York City. (Reuters/Shannon Stapleton)

By The Associated Press

NEW YORK (AP) — Donald Trump’s lawyers warned Monday that a gag order sought by New York prosecutors ahead of his March 25 hush-money criminal trial would amount to unconstitutional and unlawful prior restraint on the former president’s free speech rights.

Trump’s lawyers urged Judge Juan Manuel Merchan to reject the request, which prosecutors said was prompted by his “long history of making public and inflammatory remarks” about people in his legal cases, as well as a spike in threats tied to his rhetoric.

The Manhattan district attorney’s office asked last week for what it described as a “narrowly tailored” order to bar Trump from making or directing others to make public statements about potential witnesses and jurors, as well as statements meant to interfere with or harass the court’s staff, prosecution team or their families.

Trump’s lawyers, responding in court papers Monday, said such an order would hinder his ability to “respond to public attacks relating to this case” while foes including his former lawyer Michael Cohen are free to criticize him in TV appearances and on social media.

They suggested the prosecution’s request is intended to muzzle Trump, the leading Republican presidential candidate, at a critical time in his campaign — with Super Tuesday primaries in 16 states and his Democratic rival, President Joe Biden, set to deliver the annual State of the Union address on Thursday.

“American voters have the First Amendment right to hear President Trump’s uncensored voice on all issues that relate to this case,” Trump’s lawyers Todd Blanche and Susan Necheles wrote in their 18-page response.

“President Trump’s political opponents have, and will continue to, attack him based on this case,” Trump’s lawyers said. “The voters have the right to listen to President Trump’s unfettered responses to those attacks — not just one side of that debate.”

In a related filing Monday, Trump’s lawyers said they agreed with prosecutors that the names of jurors should be kept from the public to protect their safety.

Merchan did not immediately rule. Barring a last-minute delay, the New York case will be the first of Trump’s four criminal indictments to go to trial.

The Manhattan case centers on allegations that Trump falsified internal records kept by his company to hide the true nature of payments to Cohen after he paid porn actor Stormy Daniels $130,000 as part of an effort during Trump’s 2016 presidential campaign to bury claims he’d had extramarital sexual encounters.

Trump is charged with 34 counts of falsifying business records, a felony punishable by up to four years in prison, though there is no guarantee that a conviction would result in jail time.

Trump has lashed out about the case repeatedly on social media, warning of “potential death & destruction” before his indictment last year, posting a photo on social media of himself holding a baseball bat next to a picture of District Attorney Alvin Bragg and complaining that Merchan is “a Trump-hating judge” with a family full of “Trump haters.”

The proposed gag order would not bar Trump from commenting about Bragg, an elected Democrat.

Trump’s lawyers argued Monday that his past comments about Bragg should “have no bearing” on Merchan’s decision. They said prosecutors were wrong to blame Trump for a spike in threats Bragg and his office received after he posted on social media last year that he was about to be arrested and encouraged supporters to protest and “take our nation back!”

Trump didn’t make the threats and bears no responsibility for the actions of others, his lawyers wrote, characterizing the proposed gag order as a “classic heckler’s veto.”

A gag order would add to restrictions put in place after Trump’s arraignment last April that prohibit him from using evidence in the case to attack witnesses. Trump’s lawyers said they have “taken great care to ensure compliance with the terms of that order.”

Trump is already under a gag order in his Washington, D.C., election interference criminal case and was fined $15,000 for twice violating a gag order imposed in his New York civil fraud trial after he made a disparaging social media post about the judge’s chief law clerk.

“Self-regulation is not a viable alternative, as defendant’s recent history makes plain,” prosecutors told Merchan in court papers last week.

Trump, they said, “has a longstanding and perhaps singular history” of using social media, campaign speeches and other public statements to “attack judges, jurors, lawyers, witnesses and other individuals involved in legal proceedings against him.”

The proposed gag order mirrors portions of an order imposed on Trump in October in his separate Washington federal case, where he is charged with scheming to overturn the results of his 2020 election loss to Biden.

A federal appeals court panel in December largely upheld Judge Tanya Chutkan’s gag order but narrowed it in an important way by freeing Trump to criticize special counsel Jack Smith, who brought the case. Manhattan prosecutors echoed that ruling by excluding Bragg from their proposed gag order.