Topline
Former President Donald Trump still can’t speak out against court staff or prosecutors involved with his Manhattan criminal trial despite already being convicted in the case, a New York appeals court ruled Thursday, as the former president faces a number of restrictions on his speech in the ongoing criminal cases against him following his repeated attacks on prosecutors, judges and others involved in the proceedings.
Former President Donald Trump speaks during the first day of his civil fraud trial at New York State … [+]
Key Facts
Manhattan Criminal Case: Judge Juan Merchan imposed a gag order in March that bars Trump from making public statements about witnesses concerning their participation in the case, or any statements about counsel, court staff and their family members that could interfere with the case—and though he narrowed the scope of that order after Trump was convicted to say Trump can now comment on witnesses, he remains barred from speaking about court staff, prosecutors and their family members, which an appeals court upheld on hursday.
Violations: Trump violated the order 10 times and been fined $1,000 per infraction—and Merchan warned he’ll consider prison time for future violations— based on five social media posts that criticized ex-attorney Michael Cohen, a potential witness in the case, as a “serial perjurer;” an additional three social media posts attacking Cohen and adult film star Stormy Daniels, who took the stand on Tuesday; and a social media post and media interview in which Trump criticized the jury by suggesting it is made up of Democrats who are biased against him.
Federal Election Case: Trump, other parties and their counsel cannot make statements about witnesses “concerning their potential participation in the investigation or in this criminal proceeding,” and cannot make public statements about court staff, counsel in the case or their families (with the exception of Special Counsel Jack Smith) if they’re “made with the intent to materially interfere,” the D.C. Circuit Court of Appeals ruled in December—narrowing a previous order imposed by U.S. District Judge Tanya Chutkan.
The gag order comes on top of the conditions of Trump’s pre-trial release, which already barred him from communicating about the case “with any individual known to the defendant to be a witness,” except through counsel, as well as a protective order that prohibited him from sharing any sensitive materials in the case.
Violations: None so far.
Georgia Election Case: Trump does not have a formal gag order in this case, but under the terms of Trump’s bond agreement in his criminal case in Fulton County, Georgia, for trying to overturn the 2020 election, the ex-president cannot communicate with any of his co-defendants in the case or any potential witnesses about the facts of the case, and he cannot intimidate them or “otherwise obstruct the administration of justice.”
Examples of what would constitute intimidation or obstruction include any direct or indirect threats against co-defendants, witnesses, victims, the Fulton County community or any property in the community, the agreement states, including any posts on social media or reposts of other users’ comments.
Federal Documents Case: The federal case against Trump for allegedly withholding White House documents has been dismissed, but if an appeals court revives it, there’s never been a formal gag order in the case, but Trump’s bond conditions prohibited him from discussing the case with any witnesses or co-defendants Walt Nauta and Carlos de Oliveira, except through counsel, and a separate protective order barred him from sharing any discovery materials in the case, and stated he can only access that information under direct supervision of his defense counsel.
Trump did not violate any of the terms of his pre-trial release prior to the case being dismissed.
What Is A Gag Order?
A gag order is a court order that restricts people involved with a the case—potentially including the defendant, plaintiff, attorneys, witnesses or other parties—from publicly discussing things about the case, when the court believes that doing so could threaten the proceedings. Trump has been punished for violating the gag order under New York’s statute for criminal contempt, which imposes infractions for anyone who commits “wilful disobedience to [the court’s] lawful mandate.”
What To Watch For
Trump has asked the court to throw out his verdict in the Manhattan hush money case after the Supreme Court ruled he has criminal immunity for “official acts” he took as president. The ex-president argues that means some evidence used at the trial should have been excluded, and thus the verdict should be dismissed. Trump’s sentencing has been pushed back to September as the immunity dispute plays out, and if the verdict is upheld, the former president is expected to appeal the guilty verdict to a higher court.
Crucial Quote
“Mr. Trump, it’s important to understand that the last thing I want to do is to put you in jail,” Merchan said in court during Trump’s criminal trial when he announced a gag order violation, noting that imprisoning him would be “disruptive” to the trial but the judge has a duty “to protect the dignity of the judicial system and compel respect.” “Your continued violations of this Court’s lawful Order threaten to interfere with the administration of justice in constant attacks which constitute a direct attack on the rule of law. I cannot allow that to continue.”
Chief Critic
Trump has strongly opposed the gag orders against him, which he claims are a violation of his freedom of speech that hurts his presidential campaign. The ex-president said in a Truth Social post in December he would appeal the ruling against him that reimposed the election gag order, claiming the order means he “can be barred from talking and, in effect, telling the truth.” He frequently railed against the gag order against him in the Manhattan case as his trial moved forward and fines were imposed against him, writing on Truth Social after Daniels’ testimony that he “CAN’T BELIEVE I’M GAGGED, AS THE REPUBLICAN NOMINEE FOR PRESIDENT, FROM TALKING ABOUT” that day’s court proceedings, adding, “MY CONSTITUTIONAL RIGHTS HAVE BEEN TAKEN AWAY!!!”
Contra
The appeals court’s ruling in the federal election case made clear there are still a number of things Trump can comment on without violating the gag order. The gag order does not stop the former president from criticizing the Biden Administration, Justice Department or government more generally. He can also assert that he’s innocent and the case against him is politically motivated, or criticize the “campaign platforms or policies” of Trump’s political rivals in the 2024 election, the filing states. Trump can continue to criticize Chutkan and Smith, who’s leading the DOJ’s investigations into Trump, and can make comments about witnesses that don’t concern the election case. Likewise, the gag order in the Manhattan case does not bar Trump from criticizing Merchan or Manhattan District Attorney Alvin Bragg.
Tangent
In addition to the gag orders in his criminal cases, New York Judge Arthur Engoron previously imposed a gag order on Trump and other parties in a recent trial accusing the ex-president and his company of fraud, which barred parties from making any public comments or posts about members of the court’s staff after Trump made a disparaging post about one of Engoron’s clerks. An appeals court upheld the gag order, which resulted in Trump being fined a combined $15,000 for twice violating the order.
Key Background
Trump has long attacked his political and legal rivals on social media and in public speeches, and his criticism has ramped up as legal cases have piled up against him. The ex-president has repeatedly gone after prosecutors such as Smith, Bragg and Fulton County District Attorney Fani Willis, as well as Chutkan, Engoron and other judges. He’s additionally made repeated comments about potential witnesses in the federal election case that prosecutors argued made a gag order necessary, including comments about former Vice President Mike Pence and suggesting then-chairman of the Joint Chiefs of Staff Mark Milley should be executed. Chutkan, the first judge in one of Trump’s criminal cases to impose a gag order, cited the former president’s comments about Milley in her order, as well as Trump’s statements calling potential witnesses liars and suggesting Smith, who’s heading the two federal investigations into Trump, is a “thug.” Engoron’s gag order marked the first formal gag order to muzzle Trump when it was imposed on Oct. 3, though the question of whether judges would move to restrict Trump’s speech has been a source of speculation since his first indictment in March. After Engoron acted, legal experts suggested Chutkan would likely follow, with the New York judge “break[ing] the dam” for other judges.
Further Reading
Judge Expands Trump Gag Order Following Former President’s Social Media Outbursts (Forbes)
Appeals Court Reinstates Trump Gag Order In Federal Election Case—But Makes It Narrower (Forbes)
Trump Gag Order Reinstated In N.Y. Fraud Trial As Appeals Court Upholds Ban On Attacking Court Staff (Forbes)
Trump Gets Gag Order In Federal Election Case (Forbes)
Judge Imposes Gag Order On Trump In Fraud Case (Forbes)
Trump’s N.Y. Gag Order Could Mean Other Judges Will Follow, Experts Say (Forbes)
