Justice Juan Merchan is likely to rule on former president and current front-runner Donald Trump’s alleged gag order violations shortly after the “hush money” trial resumes this week. Following a Monday recess, direct and cross-examination will continue on April 30, May 2, and May 3. The judge’s decision could come on any one of those days.
The hotly anticipated ruling adds a new layer of novelty to what is already an unprecedented case in which prosecutors have reinterpreted legal standards and concepts in pursuit of a political foe, a legal scholar and expert witness in high-profile criminal cases has told The Epoch Times.
On April 25, Christopher Conroy and other government lawyers spent the opening part of the proceedings at 100 Centre St. trying to convince Justice Merchan that statements of President Trump’s in a press conference, in interviews, and on social media violate the terms of the judge’s gag order.
While acknowledging that the defendant “has a constitutional right to speak to the American voters freely, and to defend himself publicly,” the April 1 amendment to the gag order goes to some lengths to express concern about the potential effects of President Trump’s “dangerous rhetoric” on the fairness and impartiality of the proceedings, and on jurors’ willingness to participate at all if they fear the enmity of Trump supporters.
During jury selection, one candidate broke down in tears while attempting to answer routine questions about her impartiality and said that others’ knowledge of her participation made her too afraid to be a juror in this trial. The judge promptly excused her.
Yet assuaging jurors’ anxieties does not supersede the First Amendment right to free speech, and it would be highly unusual if a candidate campaigning for president did not attempt, in any context or for any purpose, to address public accusations of wrongdoing and high-profile legal proceedings brought against him or her.
Moreover, a careful reading of the terms of Justice Merchan’s gag order will raise questions about whether it applies to the statements that government lawyers have invoked in their efforts to persuade the judge to find President Trump in violation.
That’s the view of Harvey Kushner, chair of the criminal justice department at Long Island University in Brookville, New York, and an expert witness and consultant who has worked extensively with federal agencies on terrorism, drug, and other high-profile law enforcement matters.
“This is a case where a gag order is a political weapon,“ Mr. Kushner told The Epoch Times. ”Here you have a different situation, you have someone who is actually running for president, and this order is not allowing him to comment when he should have the ability to make his case on every aspect of the proceeding. There is no precedent for this.”
What the Order Covers
During jury selection for the trial, and also during the first week of witness direct and cross-examination, which began April 22, government lawyers have repeatedly sought to persuade Justice Merchan that President Trump has egregiously violated the judge’s revised gag order.Hence, in the midst one of the most critical phrases of the 2024 race, the judge must choose from a range of possible sanctions against President Trump, including monetary fines and even jail time, government lawyers argue.
The latter possibility is unsettling to supporters of the 45th president who are already sympathetic to his claims that holding the trial as his rematch with President Joe Biden gets into high gear and keeping the GOP front-runner cooped up in a courtroom for most of the week constitutes election interference.
However, the order includes highly specific language making clear that it does not bar all statements about such persons. The clause regarding known and foreseeable witnesses plainly states that it forbids the defendant from commenting on matters “concerning their potential participation in the investigation or in this criminal proceeding.”
The portion of the gag order protecting counsel, their staff, and their families is highly specific as well. It forbids statements if they “are made with the intent to interfere with, or to cause others to materially interfere with” the work of those individuals. The portion regarding jurors is broader than the other two, ruling out public statements about jurors and prospective jurors.
Alleged Violations
Given the specificity of the language in the gag order, Mr. Kushner and other legal experts do not read it as a blanket prohibition against publicly commenting on the trial or even on individuals involved it. The gag order clearly sets forth the context and intent of the public statements as material factors in assessing whether or not they constitute violations.Hence, debate is likely to continue about the relevance of the gag order to the statements that prosecutors cited during the April 25 hearing.
The first alleged violation prosecutors asked the judge to weigh consisted of statements that President Trump made in a hallway on the 15th floor of 100 Centre St. on April 22 before courtroom proceedings got underway for the day.
President Trump made a few references to his former lawyer, Michael Cohen, whose role in receiving “hush money” from the Trump Organization and paying it out to people to keep their stories out of the public eye during the 2016 race has been the subject of scrutiny.
“Cohen was a lawyer representing a lot of people over the years. . . . He puts in an invoice, they pay, they call it a legal expense, and I got indicted for that,” President Trump said, before going on to accuse Mr. Cohen of having lied in the past.
On the evening of the same day, President Trump said during an interview on Real America’s Voice, “The judge said I can’t get away from the trial. You know, he’s rushing the trial like crazy.”
He added, “That jury was picked so fast, 95% Democrats, the area’s all, mostly all Democrats. You think of it as a, just a purely Democrat area. It’s a very unfair situation.”
Prosecutors also took issue with further statements that President Trump made concerning Mr. Cohen and the first government witness called to the stand, respectively. The witness was David Pecker, the former CEO of American Media, publisher of the National Enquirer and other publications that either signed non-disclosure agreements with people whose stories President Trump did not want to become public or, in the case of swimsuit model Karen McDougal, provided opportunities for magazine appearances and other forms of self-promotion.
Attorney Christopher Conroy cited references to Michael Cohen as “a convicted liar” with “no credibility whatsoever” as examples of witness intimidation, and even questioned President Trump’s calling Mr. Pecker “a nice guy” as an illegal attempt to pressure a witness.
According to Mr. Conroy, President Trump really meant what sounds on its surface to be a mild and laudatory comment as a warning to Mr. Pecker: “Be nice. I have a platform.”
President Trump has also come in for criticism for reposting on Truth Social a comment from Fox News commentator Jesse Watters about “undercover liberal activists lying to the Judge” in the hope of serving on the jury.
On April 26, Justice Merchan listened to the prosecution express concerns about these statements before responding, “Thank you, Mr. Conroy,” and deferring his ruling on the alleged gag order violations in order to allow the questioning of Mr. Pecker on the witness stand to commence.
Bending the Law
While some legal experts, such as Mark Graber, a professor at the University of Maryland’s Francis King Carey School of Law, do see evidence of legal wrongdoing in the “hush money” case, the scope of the revised gag order is an entirely separate question.It is not clear at this point that Mr. Cohen will take the stand as a witness in the trial. Moreover, President Trump’s statements about jury selection in a borough where 84.5 percent of voters backed Democratic presidential candidate Joe Biden in the 2020 race is general in nature and does not refer to specific jurors, let alone criticize or incite any sort of retaliation against them.
His describing Mr. Pecker as “very nice, a nice guy” is not prima facie a warning to the retired publisher to be nice, and to interpret it as such requires putting words in the candidate’s mouth and imputing intent that is not evident in a common and anodyne compliment.
In Mr. Kushner’s view, the use of a gag order to punish a political candidate for making the above statements in response to a trial that might well result in jail time—and undoubtedly complicates his efforts to canvass the country and woo voters—is without precedent in U.S. legal history.
“In most cases, gag orders are relatively routine. But in this case, we’re really on terrain that hasn’t been explored before, and I don’t know what the consequences will turn out to be,” Mr. Kushner said.
In the short term, the judge may end up issuing a fine that will not tear a significant chunk out of President Trump’s total net worth. Of greater concern, Mr. Kushner said, is the bending of the law to punish constitutionally protected expression.
The trial resumes on Tuesday morning. Justice Merchan’s ruling on the gag order may come Tuesday or later in the week after the Wednesday recess.
The district attorney’s office did not immediately reply to a request for comment.
