(Photo by Mike Stobe/Getty Images)
This afternoon, Manhattan District Attorney Alvin Bragg moved for a gag order on Donald Trump.
The first of the former president’s four criminal cases, in which he’s charged with creating false business records to cover up the hush money payment to Stormy Daniels, is going to trial in a month. On February 15, the court rejected his motions for dismissal and sustained the DA’s legal theories bumping the charges up from misdemeanors to felonies. In the courtroom, Justice Juan Merchan brushed aside protest from Trump’s lawyer Todd Blanche that the prosecution amounted to “election interference” simply as a function of occurring during the presidential primary.
The case shrugged off by most legal commentators as the least serious threat to Trump’s liberty may well be the only one that goes to trial before the election.
Heretofore, Trump’s ire has been focused on the Carroll defamation case and the civil fraud claims brought by New York Attorney General Letitia James — a billion dollars in verdicts does tend to concentrate the mind. But with the New York criminal trial imminent, it seems likely that he’ll soon be aiming his firehose of vitriol at Justice Merchan’s courtroom.
And not for the first time!
Trump has lobbed dozens of social media attacks at DA Bragg, including one which appeared to show him swinging a bat at the prosector’s head. Today’s motion details hundreds of harassing communications from Trump’s supporters, including multiple death threats and two envelopes of white powder sent to the DA’s office. This mirrors the avalanche of abuse that rained down on Justice Arthur Engoron’s law clerk when Trump falsely claimed that the she was Senator Chuck Schumer’s “girlfriend.”
Justice Merchan is personally aware of what happens when Trump harnesses his supporters’ rage, having been the subject of threats during the tax evasion trial of the Trump Organization and its longtime CFO Allen Weisselberg. In that case, Trump went so far as to attack the judge’s daughter, who was employed by a Democratic consulting firm. Indeed, Trump has shown that he no qualms going after his adversaries’ family members, having attacked Special Counsel Jack Smith’s wife, as well as Justice Engoron’s wife and son after the gag order forced him to lay off the law clerk.
Plus there were those death threats against Judge Tanya Chutkan in DC, Judge Cannon in Florida, Atlanta poll workers Ruby Freeman and Shaye Moss, the jury foreperson in the Roger Stone trial after Trump blasted her on Twitter, etc.
And because of Trump’s endless legal troubles, Bragg has multiple judges to quote as proof that the former president’s attacks endanger their targets:
Defendant has a longstanding and perhaps singular history of using social media, speeches, rallies, and other public statements to attack individuals that he considers to be adversaries, including “courts, judges, various law enforcement officials and other public officials, and even individual jurors in other matters.” Carroll v. Trump, 663 F. Supp. 3d 380, 382 & n.7 (S.D.N.Y. 2023). Further, “when Defendant has publicly attacked individuals, . . . those individuals are consequently threatened and harassed.” United States v. Trump, No. 23-cr-257 (TSC), 2023 WL 6818589, at *1 (D.D.C. Oct. 17, 2023).
The order requested by the DA closely hews to the one endorsed by the DC Circuit in Trump’s election interference case, but adds language protecting jurors.
Accordingly, the People seek an order preventing defendant from:
a. making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding;
b. making or directing others to make public statements about (1) counsel in the case other than the District Attorney, (2) members of the court’s staff and the District Attorney’s staff, or (3) the family members of any counsel or staff member, if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result; and
c. making or directing others to make public statements about any prospective juror or any juror in this criminal proceeding.
The DA notes that Judge Kaplan advised the jurors in the Carroll case to address each other by number and to protect themselves by never telling anyone that they’d served on the Trump case.
And in another echo of the DC proceedings, Bragg’s deputy sought to head off Trump’s lawyers, who already tried and failed to persuade Judge Chutkan that instead of a gag order, she should postpone the trial or perhaps move it to West Virginia:
Change of venue and delay are also not viable alternatives. Defendant’s “rhetoric has national reach,” meaning that his speech will pose the same threat to trial participants “regardless of locale.” Trump, 88 F.4th at 1017-18; see Gentile, 501 U.S. at 1075 (recognizing that “a change of venue may not suffice to undo the effects of [extrajudicial] statements”). And delaying the trial—in effect, granting defendant the relief that this Court has now denied many times—would “create perverse incentives” and “unreasonably burden the judicial process.” Id. at 1018. It would also be ineffectual, since allowing defendant yet more time to engage in public attacks would impair the integrity of this trial more, not less.
Cue the Trump tantrum in 3… 2…
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
