Ex-US President Donald Trump has never kept his opinion secret. In the Stormy Daniels case, however, the judge could ask just that of him. He would have good reasons for that.
Since the noose around Donald Trump’s neck tightened in the Stormy Daniels case, the former US President’s truth social cannon has been glowing. In the online network he co-founded, the accused fired volley after volley at the legal representatives responsible for his payment to the former porn actress. At the same time he tries to mobilize his followers to protest against the alleged “witch hunt”.
Even before his indictment, Trump warned of “death and destruction” if he were tried – for some an open call for violence, reminiscent of the Capitol storm. The 76-year-old called the responsible judge Juan Merchan a “Trump hater”. And he called his accuser, District Attorney Alvin Bragg, “racist,” “animal,” and “corrupt.”
In a now-deleted post, Trump posted a photo of himself with a baseball bat next to a photo of Bragg with his hands raised. And as he left for New York for his arraignment on Monday, the ex-president wrote: “Witch hunt while our once great country perishes.”
Merchan could impose “gag order” on Donald Trump
But these tirades could soon be over. Legal experts speculate that Merchan could impose a so-called “gag order” on Trump or other parties involved in the proceedings, a ban on publicly speaking about the case. Such bans on speaking are quite common in criminal cases. They are designed to prevent disputants, attorneys, or witnesses from making statements that could incite violence, threaten prosecutors or witnesses, or influence the jury.
Trump’s previous attacks would be a good reason for Merchan to ban the accused from further comment on the process. “The judge wants to maintain decency in the courtroom,” New York criminal defense attorney and former Manhattan Assistant District Attorney Jeremy Saland quoted news site The Hill as saying. “The judge wants this to be heard within the four walls of the courtroom. This is not a public spectacle. This is a very important case in the sense that it has all the eyes of the nation on it […]. So a lot depends on it.”
Former Deputy Prosecutor Robert Gottlieb also sees Trump not immune to a “gag order”: “He’s no different than anyone else,” Gottlieb told NBC New York. Even considering all the political implications of the case, Trump does not get “more rights […]to influence the jury or to threaten or incite violence. In this courtroom, he is just a defendant.”
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For Trump, such a speech ban would be a serious blow. While he could appeal, if he fails and is actually barred from speaking about the ongoing case, the Republican nominee would no longer be able to face the charges of “attacking our nation” and “politically persecuting and interfering with elections.” cannibalize “the radical left-wing Democrats” for his election campaign. For Tuesday evening, the Republican has already announced that he will make a statement at his private residence in Mar-a-Lago, Florida. In the case of a “gag order” it should be pretty thin.
Violation of “gag order” is punishable
If Trump can’t keep himself in check and ignores the order, the worst-case scenario would be imprisonment. A defendant who violates a “gag order” in New York can be convicted of contempt. The maximum penalty for this offense is one year in prison. Typically, a judge will warn a defendant before issuing a contempt subpoena.
But even if the judge doesn’t impose a “gag order” or the attempt fails, Trump has to be careful what he says. If the Republican continues to comment on the case as before, he could still violate other laws, said former New York prosecutor Cyrus Vance on the US broadcaster MSNBC.
“There’s a crime under New York law called obstructing the work of government,” Vance said on Inside with Jen Psaki. This is an attempt to intimidate officials. “If I were Mr. Trump’s attorney, I would tell him to stop doing this because it won’t help him in front of a judge. And when it comes to indictment, it won’t help him in front of a jury.”
Former federal prosecutor Michael McAuliffe also sees this danger: Trump’s “inability to remain silent” could nullify any advantage his legal team could have from a “gag order”, McAuliffe told the news magazine “Newsweek”. If the defendant complies with the order, it could prevent him from incriminating himself with his social media posts. However, if he is unable to do so, he could be charged with contempt of court. “Furthermore, Trump’s continued attempts to publicly influence the course of his trial — just last week he commended the Manhattan grand jury when he believed they would not vote to indict him — could result in a charge of obstruction administering justice,” added McAuliffe.
According to Todd Berger, a law professor at Syracuse University, a number of things could happen if Trump violated a “gag order.” He could write something incriminating on social media that would be used against him in court, even if he didn’t testify there himself, Berger told Newsweek. And if Trump does take the stand, any of his previous postings and statements that are inconsistent with what he testified in court could be used against him.
“One problem with a gag order, of course, is that he might not be able to follow it,” the professor said. “As a result, his lawyers have to worry constantly about whether he will be charged with contempt of court for violating the order.”
Sources: Reuters, MSNBC “Inside with Jen Psaki”,, NBC New York, “The Hills”, “Newsweek”