NEW YORK (AP) — Virtually every day of his life silence criminal trial moneyFormer president donald trump talks about how he can’t talk about the case.
A gag order prohibits Trump from commenting publicly on witnesses, jurors and certain others connected to the matter. The New York judge has already concluded that Trump, the presumptive Republican presidential nominee, repeatedly violated the order, fined him $9,000 and warned that arrest could follow if he doesn’t comply.
But the order does not prevent Trump from speaking about the charges against him or commenting on the judge or elected prosecutor. And despite a recent remark from Trump, that doesn’t stop him from testify in court if he chooses.
As he fights the criminal charges against him while running for president, Trump has sometimes provoked confusion over what he can and cannot do in the case. He pleaded not guilty.
So what does the order do, what doesn’t it do, and where did it come from?
WHAT IS A GAG ORDER?
Generally speaking, a gag order is a directive from a judge that prohibits someone or people involved in a legal proceeding from commenting publicly on some or all aspects of it. In Trump’s case, it is titled “Extrajudicial Statements Restraining Order,” meaning “extrajudicial” outside of court.
Gag orders, especially in high-profile cases, are intended to prevent information presented outside the courtroom from affecting what happens inside.
Trump is also subject to a gag order in his federal criminal election interference case in Washington. That order limits what he can say about witnesses, lawyers on the case and court staff, although an appeals court cleared him to talk about special counsel Jack Smith, who brought the case.
On his recent work in New York civil fraud trialTrump was fined a total of $15,000 for the comments he made about that judge’s legal assistant after a gag order banned trial participants from “posting, emailing or speaking publicly” about court staff.
The U.S. Supreme Court has recognized that gag orders can pit fair trial rights against free speech rights. The court overturned some orders prohibiting the press from reporting on certain cases or court proceedings and rejected, as too vague, a Nevada court ruling that limited what all lawyers could say outside of court.
IS TRUMP FIGHTING GAG’S ORDER?
Yes. Before the trial, he asked a state appeals court postpone the trial while he appeals the gag order, but the court refused. His appeal to order itself is ongoing.
WHO IS COVERED BY THE TRUMP GAG ORDER?
Initially imposed on March 26the gag order prohibits Trump from making or ordering others to make public statements about any juror and about the participation of any “reasonably foreseeable” witness in the investigation or trial.
It also prohibits any statements about lawyers in the case, court staff, prosecution advisors, and relatives of all of the above to the extent that the statements are intended to “materially interfere or cause others to materially interfere” with their work in the case. “or with the knowledge that such interference is likely to result.”
The order does not apply to Judge Juan M. Merchan or Manhattan District Attorney Alvin Bragg, whose office is prosecuting the case. However, this applies to comments about your family members. Merchant added this provision on April 1 after Trump attacked the judge’s daughter on social mediaa Democratic political consultant, and made a claim about her that was later repudiated by court officials.
Trump can also talk about his political opponents, as Merchan made clear on Thursday.
The order also does not prevent witnesses from commenting on Trump. Michael Cohen, Trump’s former lawyer and an expected witness, has routinely attacked his former boss, leading Trump to complain about not being able to respond in kind.
CAN TRUMP TESTIFY?
Yes. The U.S. Supreme Court has held that criminal defendants have a constitutional right to take the stand in their own defense – or do not stop.
There was some confusion after Trump said on Thursday that because of the gag order he was “not authorized to testify.” In context, it seemed like he was actually referring to his ability to answer a reporter’s question in the courtroom hallway about a witness’ testimony that afternoon.
Trump clarified to reporters on Friday that he understood the order was not a bar to testify. Merchan emphasized the same in court.
“I want to emphasize, Mr. Trump, that you have the absolute right to testify at trial if you choose to do so after consulting with your attorneys,” Merchan said.
WHY WAS TRUMP FINED? WHAT CAN’T HE SAY?
Merchan found that Trump violated the gag order with social media posts that targeted Cohen. Among the offensive posts: one that asked whether “disgraced lawyer and criminal Michael Cohen was prosecuted for LYING,” a repost of a New York Post article that described Cohen as a “serial perjurer,” and a post by Trump referring to Fox News host Jesse Watters’ claim that liberal activists were lying to infiltrate the jury.
Merchan noted that Trump’s comment in Watters’ segment distorted what the host actually said, making the comment “the defendant’s own words.”
On the other hand, Merchan refused to sanction Trump for an April 10 post that referred to Cohen and Stormy Daniels, the porn performer who received a secret $130,000 payment at the heart of the case, as “bags despicable.”
Trump claimed he was responding to Cohen’s previous comments, and the judge said the back-and-forth gave him pause as to whether that post met the standards for violation.
COULD TRUMP REALLY GO TO PELA BY GAG ORDER?
When Merchan fined Trump $1,000 each for nine violations — the maximum fine allowed by law — he wrote that “imprisonment may be a necessary punishment” for some wealthy defendants who will not be deterred by such a sum.
Merchan added that he “will not tolerate continued willful violations” of the gag order and that, if “necessary and appropriate,” he will “impose an incarceratory punishment,” i.e., imprisonment.
It is unclear what would rise to the level of “necessary and appropriate.”
Defense attorney Todd Blanche indicated in court Friday that he plans to appeal the judge’s ruling last week that Trump violated the gag order.
Prosecutors asked Merchan to hold Trump in contempt again and fine him $1,000 for each of four alleged violations from April 22-25. But prosecutors are not asking for the former president to be arrested over those comments because they happened before Merchan’s arrest notice and because “we prefer to minimize disruption to this process,” said prosecutor Christopher Conroy.
