The Expanded Gag Order

It may be April Fools, but it was a dead serious day.

Trump posted a bond in tonight, assisted by Knight Insurance, a California business. The bond secures his ability to pay the judgment the New York Attorney General obtained against him in the civil fraud case, although an appellate court lowered the amount of the bond to $175 million. Forbes reporter Dan Alexander told MSNBC’s Lawrence O’Donnell tonight that the bond was collateralized by cash and investment-grade bonds. Where exactly the funds came from and what position it leaves Trump in remains to be seen.

But tonight, we turn our attention to Manhattan, where Judge Merchan, just two weeks away from the start of the trial, expanded the Trump gag order to protect the families of all trial participants, including his and the District Attorney’s. Both of them are excluded from the gag order. In recent days, Trump repeatedly attacked the Judge’s daughter, which led the DA’s office to ask the Judge to clarify the order’s reach.

The Judge’s order is five pages long and well worth reading in its entirety. But we’ll cover some of the most important points here.

The order is harshly critical of Trump, accusing him of “desperately” attempting to “explain away his dangerous rhetoric” by placing the blame on the people he attacks. Trump’s lawyers also come in for blame, with the Judge calling their arguments “at best strained” while labeling them “baseless misrepresentations” that are “uncorroborated” by any evidence and made in reliance on “innuendo and exaggeration” at worst. The Judge says the accusations are “not rational.” In what appears to be a reference to a photo of the Judge’s daughter that Trump posted over the weekend, Judge Merchan writes, “To argue that the most recent attacks, which included photographs, were ‘necessary and appropriate in the current environment,’ is farcical.”

The prosecution’s arguments are “compelling” in the Judge’s view and support the claim that Trump’s “conduct is deliberate and intended to intimidate this Court and impede the orderly administration of this trial.” It’s important to stop and remind oneself that this is a former president and the likely nominee of the Republican Party this year who is being characterized, on the basis of his own comments, as a threat to the integrity of the criminal justice system and the rule of law. Trump richly deserves it.

The Judge takes the following actions in his order:

• He grants a prosecution motion he had previously set aside that asked the Court to admonish Trump that any statutory right he has to access juror names will be “forfeited by continued harassing or disruptive conduct.” The Judge ruled that he will now tell Trump that “if he engages in any conduct that threatens the safety and integrity of the jury or the jury selection process,” he will lose the right he otherwise has under the law to know the names of jurors.

• He clarifies his initial gag order did not include family members of the Court or of the District Attorney, so Trump’s recent statements do not violate the gag order. But going forward, similar statements would if they were made with an intent to “materially interfere with these proceedings,” or to cause others to do so.

• He puts Trump on notice that “any violation of this Order will result in sanctions under Judiciary Law §§ 750(A)(3) and 751.” We discussed those provisions in The Week Ahead last night. They permit the Judge to pursue criminal contempt against Trump if he violates the order. The possible penalties are fines, custody, or both.

Judge Merchan undoubtedly does not want to become the Judge who jails Trump pre-trial for misconduct. He directly addresses the importance of protecting the First Amendment rights of political candidates: “Courts are understandably concerned about the First Amendment rights of a defendant, especially when the accused is a public figure … that is because ‘the impact of an indictment upon the general public is so great that few defendants will be able to overcome it, much less turn it to their advantage.’”

But, he concludes, “The circumstances of the instant matter, however, are different. The conventional 'David vs. Goliath' roles are no longer in play as demonstrated by the singular power Defendant's words have on countless others.”

The Judge assesses Trump’s conduct as a threat to the rule of law itself. As we’ve been discussing for the past few days, the Judge has an obligation to protect the integrity of proceedings in his courtroom and to make sure witnesses and jurors know the court will protect them. The Judge addresses this point at length and gives every appearance of being serious about it:

“The threats to the integrity of the judicial proceeding are no longer limited to the swaying of minds but to the willingness of Individuals, both private and public, to perform their lawful duty before this Court. This is evidenced by the People's representations that ‘multiple potential witnesses have already expressed grave concerns [. . .] about their own safety and that of their family members should they appear as witnesses against the defendant.’ … It is no longer just a mere possibility or a reasonable likelihood that there exists a threat to the integrity of the judicial proceedings. The threat is very real. Admonitions are not enough, nor is reliance on self-restraint. The average observer, must now, after hearing defendant's recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well. Such concerns will undoubtedly interfere with the fair administration of justice and constitute a direct attack on the Rule of Law itself. Again, all citizens, called upon to participate in these proceedings, whether as jurors, witnesses, or in some other capacity, must now concern themselves not only with their own personal safety but with the safety and the potential for personal attacks upon their loved ones. That reality cannot be overstated.”

This is the most serious development we’ve seen yet from a Judge, in terms of taking steps towards punishing Trump for threatening behavior.

In a 1935 case, Berger v. United States, the Supreme Court discussed the role of the prosecutor, who they said “may prosecute with earnestness and vigor-indeed he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Often, we focus on the obligation of prosecutors to treat defendants fairly. At this juncture, we must also focus on their obligation to ensure “just” results. In the cases against the former President, the rights of the people are every bit as important as Donald Trump’s. Hard blows, but fair ones.

Prosecutors in Manhattan seem to understand that challenge and they have taken it to the Judge, who has responded just as clearly. The ball is in Trump’s court now. Can he, for perhaps the first time, abide by an order from a court telling him to control himself, or is it only a matter of time? Judge Merchan seems hopeful of the former but prepared for the latter.

We’re in this together,

Joyce