Trump Attorneys Oppose New Gag Order, Say His Speech Deserves ‘Heightened Protection’

Donald Trump speaks during a Fox News town hall at the Greenville Convention Center in Greenville, S. C., on Feb. 20, 2024. Justin Sullivan/Getty Images

Attorneys for former President Donald Trump filed on March 4 a response opposing Manhattan District Attorney Alvin Bragg’s proposed gag order ahead of trial this month.

The court has already declined to issue a gag order in this case once, and the trial will be highly publicized as the first-ever criminal prosecution of any American president—sitting or former.

During President Trump’s arraignment last April, Judge Juan Merchan made a “request” of both parties to dial down inflammatory language. However, he also said he would not enter a protective order at the time, citing President Trump’s candidacy.

“Certainly, the Court would not impose a gag order at this time even if it were requested. Such restraints are the most serious and least intolerable on First Amendment rights,” he said, according to court filings. “That does apply doubly to Mr. Trump, because he is a candidate for the presidency of the United States. So, those First Amendment rights are critically important, obviously.”

Gag Order and Campaign Timing

The trial has been set for March 25, and this month is a busy one on the election calendar, as nearly two dozen states are holding primaries.

Defense attorneys pointed out that President Joe Biden, a key political rival, is also set to deliver his “State of the Union address for his own political advocacy—to assail President Trump based on politically motivated indictments, including the one in this case.”

They argue that political speech has high protection under the First Amendment, citing several precedential cases. Speech concerning public matters is “the essence of self-government” and afforded “greater constitutional protection” than even speech of self expression.

“The First Amendment under the State and federal Constitutions requires that President Trump’s ability to respond to public attacks relating to this case, as he continues his leading campaign for the Presidency, be afforded the highest level of constitutional protections,” they argued.

President Trump’s political opponents continue to speak about his cases, and the American public—voters—have the right to hear “not just one side of that debate,” they argued.

They note that Mr. Bragg, despite being a public figure, is left out of the gag order, following a federal appeals court decision that special counsel Jack Smith, prosecuting two criminal cases against President Trump, should be left out of another gag order. Two key witnesses are arguably public figures as well, having made several media appearances to talk about President Trump’s candidacy and case.

Other Gag Orders

Defense attorneys reminded the judge of the standards he articulated during the arraignment and said prosecutors have not met that high bar.

“The People also ignore the fact that binding Supreme Court precedent requires a ’solidity of evidence' to support a gag order. They have not produced such evidence,” the response reads.

The gag order the Manhattan district attorney seeks is phrased similarly to one upheld by a federal appeals court, which would prohibit President Trump from making statements about legal counsel with the exception of the district attorney, court staff, and witnesses as it relates to the case. The rationale is that the court should prevent prejudice, harassment of non-public figures, and the intimidation of witnesses.

President Trump had previously made statements about the credibility of two key witnesses in the case, however, and is likely to wish to continue to do so.

His attorneys argue that the prosecutors failed to “point to actual prejudice from those earlier statements, such as an indication that witnesses in this case feel harassed or intimidated, which they have not presented evidence of, undercuts their application significantly.”

Michael Cohen, a former lawyer to President Trump turned vocal critic, had helped initiate the case when he made public claims that President Trump asked him to pay off an adult actress alleging an affair, wanting to prevent such a story in the media during his 2016 campaign.

Stephanie Gregory Clifford, also known as Stormy Daniels, is alleged to have received payments from Mr. Cohen, reimbursed by the Trump Organization.

Mr. Cohen’s public claims about President Trump had led to a separate civil case against President Trump, which recently entered judgment. He claimed that President Trump artificially inflated his net worth, leading to a fraud investigation and case that President Trump is now appealing.

During trial, defense attorneys had sought to impeach Mr. Cohen as a witness, and under questioning, he admitted to lying in court under oath multiple times.

The judge overseeing the civil fraud case had also issued a gag order, which was more narrowly tailored to prohibit only statements about the judge’s staff.

President Trump’s attorneys alleged the judge’s principal law clerk was showing signs of bias, leading the judge to expand the gag order to cover counsel. They appealed the order and made additional claims in a motion for mistrial but it was upheld by an appeals court.

During the appeals process, a court risk officer submitted an affidavit citing hundreds of voicemails made to the law clerk after President Trump made statements about her. This statement was cited in federal courts, leading an appeals court to uphold and affirm a second gag order against President Trump.