What Could Happen If a Judge Is Asked to Muzzle Trump

What Could Happen If a Judge Is Asked to Muzzle Trump
Former President Donald Trump speaks at the New Hampshire Republican State Committee's Annual Meeting in Salem, N.H., on Jan. 28, 2023. Scott Eisen/Getty Images
Janice Hisle
Updated:
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A “gag order” against former President Donald Trump could forbid him from publicly commenting on his criminal case, but it would be improper for a judge to curtail him from making statements about other topics, legal analysts say.

Considerable speculation is swirling around whether Manhattan District Attorney Alvin Bragg will seek such an order, and, if he does, whether the New York judge assigned to the case will grant it.

Judge Juan Merchan could address the gag order issue when Trump makes his initial court appearance during the afternoon of April 4. Details of the allegations against Trump, the nation’s first ex-president to face criminal indictment, will be released publicly.

The charges are expected to revolve around alleged misrepresentations of hush money payments made to one or more women prior to the 2016 election, which Trump won. He denies any wrongdoing.

Joe Tacopina, a Trump attorney, has publicly stated that he doubts Merchan would impose a gag order. And, just hours before Trump’s court appearance, the leaders of two congressional committees denounced the possible gag order as “unconstitutional.”

House Judiciary Committee Chairman Jim Jordan (R-Ohio) and House Oversight Committee Chairman James Comer (R-Ky.) said in a statement they were “deeply concerned” by reports that Bragg might seek a gag order.

“To put any restrictions on the ability of President Trump to discuss his mistreatment at the hands of this politically motivated prosecutor would only further demonstrate the weaponization of the New York justice system,” Jordan and Comer said. “To even contemplate stifling the speech of the former commander-in-chief and current candidate for President is at odds with everything America stands for.”

If Bragg does try to get Merchan to muzzle Trump, two ex-prosecutors told The Epoch Times that the judge would have to weigh the desire to insulate the legal process against Trump’s free speech rights, coupled with citizens’ rights to hear from a presidential candidate.

Media gather near Trump Tower in New York City on April 3, 2023. Former President Donald Trump is scheduled for an arraignment tomorrow at New York County Supreme Court following his indictment by a grand jury on March 30, 2023. (Samira Bouaou/The Epoch Times)
Media gather near Trump Tower in New York City on April 3, 2023. Former President Donald Trump is scheduled for an arraignment tomorrow at New York County Supreme Court following his indictment by a grand jury on March 30, 2023. Samira Bouaou/The Epoch Times

Other Topics Allowed

The analysts, who have no connection to the case, said they think Merchan would be out-of-bounds if he attempts to muzzle Trump from discussing other topics.

Michael Bachner, a New York defense lawyer and former Manhattan prosecutor, said he didn’t think it would be enforceable. In fact, he doubts that a judge “could or would” issue such a sweeping gag order.

However, Merchan does have the power to specify what Trump, Bragg, and others directly involved in the case are permitted to disclose about the court proceedings or the evidence for and against Trump.

Ohio attorney Mike Allen said, “The judge would have to tailor the order narrowly, so as not to gag him from speaking out on other issues.”

Gag orders are generally reserved for cases that garner a lot of publicity or other cases in which “lawyers are out of control or lawyers lose control of their clients,” Bachner said.

Bachner agreed that gag orders are generally crafted “in the least restrictive way.”

Jail Threat Looms

In Trump’s case, the judge might allow leeway for general statements such as “I’m going to beat the charges,” Bachner said, cautioning that Trump could be thrown in jail for running afoul of any such order.

Merchan “does not suffer fools lightly,” Bachner said. “In my experience with him, he will not let this turn into a circus. He will not hesitate, in my opinion, to hold someone in contempt if that person violates a rule or does something wrong.”

Robert Hoatson outside Trump Tower in New York City on April 3, 2023. (Samira Bouaou/The Epoch Times)
Robert Hoatson outside Trump Tower in New York City on April 3, 2023. Samira Bouaou/The Epoch Times

Allen, who is also a former judge, said that if he were asked to impose a gag order in such a case, he would refuse.

“You have to consider that Trump is in the middle of a presidential race. Even if the trial judge grants it, it will be appealed to a higher court,” Allen predicted.

Both Bachner and Allen said that, if the judge issues a gag order, it would surely apply to both the prosecution and the defense. Neither Bachner nor Allen has seen a one-sided gag order in their decades of legal experience.

While the judge must be careful about treading on Trump’s First Amendment rights, Trump must be mindful that, now that he’s a criminal defendant, he could talk his way into further trouble, Bachner said.

Statements Against Prosecutor

“Trump’s got to be careful,” Bachner said, noting that the former president has made numerous public statements against Bragg. If any statements against the district attorney could be considered threats or interference in the case, Trump “could end up with an indictment for obstruction of the administration of justice,” Bachner said.
On April 3, the eve of his first court appearance, Trump accused Bragg of illegally “leaking”  grand jury information. He declared that Bragg should be indicted or resign.

Bachner confirmed that, if an investigation proves anyone revealed secret grand jury proceedings, criminal charges could follow. He said he knows of cases in which people have been prosecuted for breaching a promise to maintain confidentiality. Witnesses are allowed to discuss their grand jury testimony, Bachner said. But everyone else involved is bound by a secrecy oath.

Trump has also criticized Merchan, who handled other cases involving Trump’s business affairs, alleging that the judge “hates” him. Some legal wonks have said Trump’s team could seek another judge and is also likely to ask that the charges be dismissed as politically motivated, selective prosecution.

Bragg, a Democrat, campaigned on promises that he would target Trump.

Other Restrictions Possible

Under New York state laws regarding nonviolent offenses, the former president is expected to be released on his promise to appear for future court proceedings, Bachner said.

“A court can still condition your release on abiding by various dictates,” such as a gag order or a restriction on foreign travel, Bachner said.

So far, news of Trump’s indictment seems to have buoyed his campaign. His campaign reported reaping more than $7 million in a three-day span after the grand jury’s decision leaked out last week.

Bragg issued a general statement confirming that Trump had been indicted. Trump and his supporters have denounced the prosecution as a witch hunt, and they assert that everyday citizens are so outraged, they are donating to his campaign to help him fight back.

Supporters of former President Donald Trump wave flags and cheer at a rally in West Palm Beach, Fla., on April 3, 2023. (Wilfredo Lee/AP Photo)
Supporters of former President Donald Trump wave flags and cheer at a rally in West Palm Beach, Fla., on April 3, 2023. Wilfredo Lee/AP Photo

The former president also faces several other legal probes.

Trump, who served as the nation’s 45th president from 2017–21, is the current frontrunner to become the Republican Party’s nominee for the 2024 election. Democratic President Joe Biden, who now holds office as the 46th president, has not yet declared whether he will seek reelection.

Whatever happens with the criminal case, Bachner said Trump needs to be aware of one thing.

“When you’re under the auspices of the court ... the judge, he is the single most powerful person you’re dealing with at this point,” he said.

Janice Hisle
Janice Hisle
Reporter
Janice Hisle reports on former President Donald Trump's campaign for the 2024 general election ballot and related issues. Before joining The Epoch Times, she worked for more than two decades as a reporter for newspapers in Ohio and authored several books. She is a graduate of Kent State University's journalism program. You can reach Janice at: [email protected]
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