Everything you need to know about the gag order in NY v. Trump
New York law professor says the gag order could become a 'constitutional crisis'
{{#rendered}} {{/rendered}}In the unprecedented criminal trial of former President Donald Trump, Judge Juan Merchan’s gag order has added another layer of complexity to an already unique legal circumstance.
Trump, the presumptive GOP nominee for the 2024 presidential election just six months away, is barred from speaking about any of the witnesses in his case, the jury and members of the district attorney’s staff – other than Manhattan District Attorney Alvin Bragg himself. Anyone under Trump’s direction is also barred from speaking to or on any of those matters.
On April 2, the gag order was expanded to include barring Trump from speaking about family members of the judge, including his daughter, who works as a Democratic consultant and has represented Democratic elected officials such as Vice President Kamala Harris and Rep. Adam Schiff, D-Calif.
{{#rendered}} {{/rendered}}In a Truth Social post, Trump called out Merchan's daughter by name, noting her place of work and referenced a social media post of a picture showing Trump behind bars. The Manhattan court has claimed that the account does not belong to Merchan's daughter.
Trump’s legal team has appealed the gag order after Merchan found Trump in violation of it. The judge has also imposed $10,000 in fines and even threatened jail time if he continues to violate court rules.
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{{#rendered}} {{/rendered}}Former President Donald Trump awaits the start of proceedings at Manhattan Criminal Court, Monday, April 22, 2024, in New York. (AP Photo/Yuki Iwamura, Pool)
New York’s Appellate Division on Wednesday granted the Trump team’s request for an expedited briefing timeline for appealing the gag order.
The prosecution now has a deadline of May 15 to file a reply brief; Trump’s lawyers will have until May 20 to file their response. All of the briefing documents are under seal by court order, so the details of the appeal and the specific challenges to the order are not public.
But a source close to the campaign says that the Appellate Division appears to be inclined to move more quickly than it normally would.
{{#rendered}} {{/rendered}}Trump’s lawyers argued to Merchan that the gag order was unilateral and that it only applies to Trump and not to other expected witnesses. Trump’s ex-lawyer Michael Cohen, expected to take the witness stand Monday, has made disparaging comments about Trump on social media, fundraising off the case and wearing a T-shirt depicting Trump behind bars, but the gag order prevents Trump or his team from responding publicly.
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Republican presidential candidate and former President Donald Trump gestures to supporters during an election night watch party at the State Fairgrounds on February 24, 2024, in Columbia, S.C. (Win McNamee/Getty Images)
Trump’s team had also argued that Merchan has an irretrievable conflict of interest, since his daughter is accused of actively helping her clients profit off of the trial.
{{#rendered}} {{/rendered}}They have also argued the gag order wrongly bans Trump from commenting on Michael Colangelo’s involvement with the case. Colangelo is a former high-ranking Justice Department political official and worked in the New York Attorney General’s office on other Trump prosecutions. Trump’s lawyers have argued that the gag order wrongly prevents discourse about what they perceive as Colangelo’s possible political motivations.
Gregory Germain, a law professor at Syracuse University, told Fox News Digital that, if the issue were before the Supreme Court, he’s "quite confident "that the gag order would be overturned.
"The Supreme Court would be very concerned about gagging a presidential candidate during an election from criticizing the court or the process in such a broad way. A very limited order to protect the identity of jurors or secret witnesses might stand, but gagging Trump from speaking about well-known witnesses like Stormy Daniels and Michael Cohen, who are on the lecture circuit talking about him, or criticizing the political nature of the process, could not be justified under the very restrictive standard for prior restraints on free speech," Germain said.
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Republican presidential candidate and former U.S. President Donald Trump points to supporters at the conclusion of a campaign rally at the Atkinson Country Club on January 16, 2024, in Atkinson, N.H. (Brandon Bell/Getty Images)
Germain noted that the issue is a long way from the Supreme Court and that the Appellate Division "may not have the same respect for the serious constitutional issues posed by a gag order of this kind. They might slow-walk the request or try to tinker with the language."
"But the issue will become a constitutional crisis if Judge Merchan puts Trump in jail for contempt. If that happens, and it seems like a real possibility because Merchan and Trump are locked in a game of chicken over the issue, I would not be surprised to see an emergency petition to the Supreme Court being granted if the Appellate Division does not take the matter seriously now," he said.
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"If the Appellate Division is wise, they will send the order back to Judge Merchan with strict instructions to limit the order very specifically to threats that pose an imminent danger of violence or lawlessness. Mere fear that a deranged supporter might respond with violence does not meet the constitutional test."
Trump campaign spokesperson Steven Cheung said, "The gag order imposed by conflicted Judge Juan Merchan in the lawless Manhattan D.A. case is unconstitutional and un-American."