The judge presiding over former President Trump’s case in New York faces a difficult and politically thorny early decision: whether to impose a gag order on Trump and others in the case.
A gag order could limit what Trump can say about the case just as he is preparing to use it as part of his campaign messaging, reflecting how the political and legal worlds are colliding in an unprecedented way with the indictment of a former president.
Trump in a series of Truth Social posts has already lashed out at District Attorney Alvin Bragg (D) and Justice Juan Merchan.
Trump warned of “death and destruction” if he were charged, called Merchan a “Trump Hating Judge” on Sunday and has repeatedly smeared Bragg for weeks.
“WITCH HUNT, as our once great Country is going to HELL!,” Trump posted as he departed for New York for his arraignment.
New York legal experts say those attacks raise the possibility on Tuesday of the judge issuing a gag order, an uncommon but not unprecedented move that would effectively prevent Trump or his attorneys from speaking publicly about the case outside of court filings and proceedings.
“The judge wants to keep the decorum of the courtroom,” said Jeremy Saland, a New York criminal defense lawyer and former Manhattan assistant district attorney.
“The judge wants this tried in the four corners of the courtroom,” he continued. “This is not a public spectacle. This is a very important case in the sense that every eyeball on the nation is on this, every ear of the nation is on this, and beyond. So there’s a lot riding on this.”
The former president announced plans to deliver remarks at Mar-a-Lago Tuesday evening after returning to his Florida residence from Manhattan criminal court. But a gag order potentially throws what that speech includes into question.
Trump and his team have already made clear that they plan to use the indictment to rally political support, portraying the former president as a victim of a politically motivated prosecution in fundraising solicitations, social media posts and interviews. Recent polls have shown a majority of Americans believe the indictment was at least somewhat politically motivated, a feeling Trump and his team will try to exploit to shore up support.
Trump’s legal and campaign teams are said to be preparing for the possibility of a gag order, and they have indicated they would push back on it as restrictive of Trump’s First Amendment rights.
“President Trump stands for transparency and our American Constitution, and any attempt to prevent him, the leading candidate for President, from exercising his First Amendment right is a tyrannical, third-world country move which further proves that this is nothing more than a political witch-hunt utilizing a weaponized justice system,” a Trump campaign spokesperson said in a statement.
“All Americans should be concerned about their rights being violated and any attempt to obstruct President Trump’s right to use his voice in order to speak truth to power should never be tolerated,” the spokesperson added. “The whole targeted crusade is a complete political farce by the Manhattan DA meant to manipulate and interfere with an election against President Trump and his supporters.”
Jay Sekulow, an attorney who defended Trump in his first impeachment trial but is not part of his current legal team, argued Monday on his radio show that the court could look at other mitigating efforts before resorting to a gag order.
When asked about Trump’s recent posts on Sunday morning talk shows, Trump attorney Joe Tacopina put some daylight between him and his client.
“What he’s been through, quite frankly, I don’t blame him for feeling the way he feels,” Tacopina said on ABC’s “This Week.”
“You’re asking me my opinion,” he continued. “Do I think the judge is biased? Of course not. How could I subscribe to that when I’ve had no interactions with this judge that would lead me to believe he’s biased.”
The gag order would be intended to prevent tainting a jury pool but also would follow authorities installing barricades and strict security measures around the courthouse and the district attorney’s office. Those efforts began before the indictment as Trump’s rhetoric heated up.
Catherine Christian, who spent more than 20 years in the Manhattan district attorney’s office and now is in private practice, said security has been brought to a new level beyond even past high-profile cases, like Harvey Weinstein’s sex crimes trial.
“I never, all the years I was there, felt that except for 9/11, when I was actually downtown at that time,” Christian said. “But it wasn’t because I thought someone was coming after the DA’s office. You’re going to do your job, but I can’t imagine what it’s like to be walking out and you see barricades around the office. Or you see on Tuesday all this police presence, and it’s a little nerve wracking.”
The New York Times last week photographed Susan Hoffinger, who leads the office’s investigation division, and other top prosecutors in the probe surrounded by security guards.
“My goodness,” reacted Christian, who indicated she knew Hoffinger well and had never seen her need security like this.
But Christian noted a gag order still wouldn’t end all of the rhetoric since it’s not just Trump himself who is attacking Bragg.
“He can’t really be responsible for Lindsey Graham and all these other people,” Christian said.