Donald Trump has a First Amendment right to rubbish his political enemies and compare himself to Jesus Christ, no matter how false his claims. But the First Amendment has its limitations.
Trump is a defendant in court, and there his free speech rights are restricted when it comes to threatening witnesses, jurors, court personnel or, most pointedly, members of the judge’s family. So has ruled Judge Juan Merchan, presiding over Trump’s criminal trial in New York, which involves election interference and the cover-up of a payment to a porn actress.
This nuance escaped Kristi Welker, NBC’s anchor on “Meet the Press” last Sunday. Rather than condemning these dangerous attacks, she justified them in a triumph of banality on the basis that Trump’s attacks on Judge Merchan and his daughter is “a reminder that we are covering this election against the backdrop of a deeply divided nation.” Welker ignored that the First Amendment protects the press so the press can protect democracy.
Trump already has tried to overturn an election and is giving every indication of doing it again. Overturning democracy is not a “side.” Threatening a judge’s family when someone is on trial for serious felonies is a dangerous business, as it can lead to violence. This is also not a “side.” When the choice is between good and evil, the alternative to good is never good.
No wonder Trump is trying to intimidate Merchan. The judge just denied yet another of his attempts — his eighth, according to prosecutors — to delay his trial set to begin April 15. Trump hates judges. All too often, they rule against him.
Trump’s attacks on the Merchans are two-pronged and are nothing new.
In court, Trump earlier targeted the judge’s daughter because she has a job working on behalf of Democratic campaigns.
When the first motion was filed, Merchan sought an ethics opinion on whether he had a conflict of interest that required him to step aside. The ethics panel concluded he did not have one because the outcome of the case wouldn’t affect his daughter’s business. As the panel put it, “A relative’s independent political activities do not provide a reasonable basis to question the judge’s impartiality.”
The best Trump can argue is that the judge’s daughter does business with some of his opponents, who number roughly half of the people in the country. The point Trump’s lawyers miss, however, is that nothing about the case will directly benefit the daughter’s business or Judge Merchan. Whether Trump wins or loses, the judge’s daughter continues to do her work, just the same as if she worked for a firm disseminating campaign advocacy for Trump. The motion was denied, but Trump tried to run the argument again, in court and on social media.
How did Trump get to the point where he thinks it OK to threaten a judge’s family? His history is well known.
In 1973, Trump met the unscrupulous lawyer Roy Cohn in a darkened bar. Trump didn’t drink, but the bar, called Le Club, was a rendezvous for politicians, mobsters and real estate operators looking to make a deal. Cohn rose to national prominence as the prosecutor of the Rosenbergs and chief counsel to Sen. Joseph McCarthy.
Trump had a legal problem. The Nixon Justice Department was suing him and his father for race discrimination in housing, and every lawyer Trump talked to urged him to settle the case. Cohn’s advice was to go on the attack, and tell the government to “go to hell.”
Trump and his father were guilty of race discrimination, but that didn’t matter to Cohn. Cohn was not afraid of being labeled a racist. In 1964 he had sued Martin Luther King Jr. for defamation on behalf of a New York cop who had shot and killed a Black teenager.
His retainer in hand, Cohn counterclaimed against the government for $100,000,000, and called a press conference. The federal judge dismissed the counterclaim 10 days later, but it made good copy.
Cohn also charged the FBI and the Justice Department attorneys in the case with a “witch hunt” (sound familiar?) and “Gestapo-like tactics.” The judge held a hearing, and dismissed these charges as “utterly without foundation.” The truth counts in a court of law, but not in the court of public opinion where disinformation runs riot. After two years of “lawfare” and a record replete with delaying tactics, the Trumps settled with the Justice Department on the basis that they would discriminate no more. But, eight years later, the Trump tenants were 95 percent white.
Cohn became Trump’s mentor. He said Trump was his “best friend,” saying the real estate developer called him a dozen times a day. Cohn introduced Trump to Roger Stone, a political master of “dirty tricks.”
While Cohn’s tactics were often underhanded, and he was schooled in the art of the threat, and the virtues of delay, he was never identified with political violence. His father was a judge, and he knew the value of judge shopping. He famously said to an associate when a new case came into the office, “F— the law, who’s the judge?”
Donald Trump posted 77 times on Easter attacking the president, prosecutors, judges, sitting lawmakers and even the judge’s daughter in his criminal case in New York. Trump’s Easter message contained just seven words about Easter itself and 161 more attacking his enemies and America, which he said was a “failing state.” He even compared his legal troubles to Christ’s crucifixion.
Trump has piously said he is for law and order; but, as a presidential candidate, his speeches and attacks on the judicial system undermine the rule of law, and court anarchy. Trump studiously works the system to avoid account. He learned at the feet of the master, Roy Cohn.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.