The Gag and the Goad: Trump Should Appeal Latest Gag Order

S E E D E D   C O N T E N T

New York Supreme Court Justice Juan Merchan this week became the latest court to impose a gag order on former president Donald Trump with a stinging order that found a history of Trump attacks that threatened the administration of justice. The order will bar public criticism of figures who are at the center of the public debate over this trial and the allegation of the weaponization of the legal system for political purposes, including former Trump counsel Michael Cohen, former stripper Stormy Daniels, and lead prosecutor Matthew Colangelo. Trump is still able to criticize Manhattan District Attorney Alvin Bragg and Merchan himself. What is most striking is the protection of Cohen who continues to goad Trump in public attacks.

While many of us have criticized past attacks by the former president of judges and staff associated with cases, theses gag orders raise very serious free speech questions in my view. Prosecutors like Special Counsel Jack Smith and Bragg have pushed for a trial before the election. (Recently, Smith even stated that he may force Trump into a trial running up to or even through the election).

After these charges were delayed until just before an election, they have maintained that it is essential to try Trump before November. The timing of charges and proposed trial dates were the choice of these prosecutors. If judges are inclined to facilitate the effort for a pre-election trial, they should show some recognition of the unique context for such prosecution. Yet, judges like federal District Judge Tanya Chutkan have stated that she will not make any accommodation for the fact that Trump is the leading candidate for the presidency.

I was previously highly critical of the efforts of Smith to gag Trump before the election. In my view, the order issued by Judge Chutkan was unconstitutional. I have opposed gag orders in many cases for decades as inimical to constitutional free speech rights.

The barring of Trump from criticizing jurors or court staff (or family members) is largely uncontroversial. However, Cohen and Daniels have long been part of the political campaigns going back to 2016. Indeed, I was highly critical of Cohen when he was still the thuggish lawyer for Trump. He is now one of the loudest critics of his former client and has made continual media appearances, including on his expected appearance in this case.

Cohen's appearance on the stand will only add to the lawfare claims given the recent view of a judge that he is a serial perjurer who appears to be continuing to game the legal system.

Cohen ironically went public to criticize Trump and celebrate the gagging of him:

"I want to thank Judge Merchan for imposing the gag order as I have been under relentless assault from Donald's MAGA supporters. Nevertheless, knowing Donald as well as I do, he will seek to defy the gag order by employing others within his circle to do his bidding, regardless of consequence."

Many Americans view the Bragg case as a raw political effort and many experts (including myself) view the case as legally flawed. Some polls show that a majority now believe the Trump prosecutions generally are "politically motivated."

This election could well turn on the allegation of lawfare. However, Merchan has now largely barred the leading candidate (and alleged target of this weaponization) from being able to criticize key figures behind the effort.

The inclusion of Colangelo in the order is equally problematic. Trump has campaigned on his involvement in a variety of cases targeting him in his federal and state systems. His movement between cases is viewed by many as evidence of a "get Trump" campaign of prosecutors. He is currently the most talked about figure that many, including Trump, view as showing coordination between these cases and investigations.

My opposition to past gag orders was based on the constitutional right of defendants to criticize their prosecutions. Courts have gradually expanded both the scope and use of such orders. It has gone from being relatively rare to commonplace. However, the use to gag the leading candidate for the presidency in the final months of the campaign only magnifies those concerns.

There is a division on courts in dealing with such challenges involving politicians. For example, a court struggled with those issues in the corruption trial of Rep. Harold E. Ford Sr. (D-Tenn.). The district court barred Ford from making any "extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication," including criticism of the motives of the government or basis, merits, or evidence of the prosecution.

The United States Court of Appeals for the Sixth Circuit rejected the gag order as overbroad and stressed that any such limits on free speech should be treated as "presumptively void and may be upheld only on the basis of a clear showing that an exercise of First Amendment rights will interfere with the rights of the parties to a fair trial."

This order allows for criticism of the case and both Merchan and Bragg. However, you have key figures like Cohen and Coangelo who are already central figures in this political campaign. In Cohen's case, he has actively engaged in a campaign to block Trump politically and has done countless interviews on this case as part of the legal campaign.

While courts routinely rubber stamp such orders (and Trump's history will reinforce the basis of the Merchan order), I would still try to appeal it. The odds always run against challenging such orders and appellate courts are disinclined to even review such orders. However, there is a legitimate free speech concern raised by this order that should be reviewed by higher courts.