NY Judge should impose a Gag Order on Trump--and if he violates it--Trump must go to Jail

Gag order needed to prevent MAGA terrorism

On Tuesday, Donald Trump—the man who attempted a coup and incited the Jan 6 MAGA terrorist attack---will be arraigned before New York Supreme Court Judge Juan Merchan. There, he’s expected to enter a “not guilty” to the reported 34 counts of crimes related to business fraud.  (Two weeks ago I slammed the media for only focusing on the Stormy Daniels related charges since everything else indicated Trump would be charged with far more crimes—as he has been.)

It's unlikely Trump will be required to post bail given New York law eliminated money bail for most misdemeanors and nonviolent felonies. But that does not mean Judge Merchan cannot impose conditions on Trump’s release from custody before trial. In fact, New York judges have a wide range of conditions she or he can impose—which if violated, could lead to putting a person in prison.

In Trump’s case, Judge Merchan—a former prosecutor who is known as a “tough” but fair judge—must impose a gag order on Trump given Trump’s recent social media postings that appear to be designed to incite violence by MAGA militants plus undermine the justice system.

Under New York law, a gag order can be imposed on attorneys and parties upon a showing of a "reasonable likelihood" of a serious and imminent threat to the administration of justice. More specifically, judges issue gag orders to ensure a fair trial, to facilitate efficient administration of justice, and to prevent prejudicial information from reaching the jury pool.  

Such gag orders, however, must be narrowly tailored to balance First Amendment rights of freedom of speech. In general, courts focus on three questions when they’re deciding whether gag orders violate the First Amendment:

How likely is it that further public statements by participants in the case will prejudice the jury and harm the judge’s ability to conduct a fair trial?

Can the judge use other methods to ensure a fair trial that don’t restrict free-speech rights (like using the jury-selection process to weed out people who were prejudiced by pretrial publicity or instructing jurors not to pay attention to news)?

If not, does the gag order specifically address the problems, or is it too broad?

Gag orders have been imposed in other high profile criminal cases—such as Trump’s former campaign manager Paul Manafort, who was charged with conspiracy, money laundering and making false lobbyist registration statements in connection with his work advising a pro-Russian political party in Ukraine. Federal Judge Amy Berman barred the parties, potential witnesses and attorneys from making statements “to the media or public settings” to safeguard the defendants receiving a fair trial, “and to ensure that the Court has the ability to seat a jury that has not been tainted by pretrial publicity.”

Another Trump associate, Roger Stone, also saw his criminal trial subject to a gag order. At first, the judge imposed a very narrowly defined gag order that allowed Stone to continue discussing his case so long as he wasn’t in or near the D.C. courthouse. But that changed after Stone posted a threatening message about the judge presiding over the case on social media. Stone was then barred from discussing the details of the case, However, Stone was still allowed to raise money for his legal defense fund and explain in simple terms that he has pleaded not guilty. (This is a good example of a judge narrowly tailoring a gag order.)

If there was ever a person who a gag order was designed for it is Donald J. Trump. First, since his comments are covered extensively by the media, he has a higher likelihood than a typical defendant of corrupting the prospective jury pool with his non-stop lies about the case.  For example, Trump has claimed on social media the judge “HATES ME” and consistently attacked Manhattan District Attorney Alvin Bragg calling him an “animal,” “racist,” “a degenerate psychopath” and more. Trump’s attacks of bias against the judge and prosecutor –together with Trump’s claims that he is “innocent” and “that NO crime has been committed” –could taint a jury pool if people believe Trump that he’s being targeted unfairly. (During the trial, Trump can raise any defense he wants, this is all about pre-trial concerns.)

But with Trump there’s another concern beyond prospective jurors: Violence. It’s why the NPYD added extra security around the courthouse like they would for the trial of an Al Qaeda operative or drug kingpin.

Trump understands that his words can incite violence—his Jan 6 attack being the most visible but far from the only example. Trump—like an ISIS recruiter--has already begun the radicalization process with his social media posts that included posting an image of himself menacingly holding a baseball bat next to a photo of DA Bragg.  Days ago, Trump posted that if he was charged with crimes it could lead to “potential death & destruction” that “could be catastrophic for our country?” He has mocked the idea of “peaceful protests” if he is charged, writing last week: “Our country is being destroyed as they tell us to be peaceful.”

And on Saturday, Trump posted on social media: “INDICTING A TOTALLY INNOCENT MAN IN AN ACT OF OBSTRUCTION AND BLATANT ELECTION INTERFERENCE,” adding, “HOW MUCH MORE ARE AMERICAN PATRIOTS EXPECTED TO TAKE???”

Before Jan 6 you could perhaps dismiss this as the desperate, over the top words of a man facing criminal charges. But after Trump’s Jan 6 attack--plus the MAGA terrorist attack last year on the FBI’s Cincinnati office after the FBI searched Mar-a-Lago—we know this is Trump’s way of preparing his base to commit violence.

And as expected, Manhattan DA Bragg and his office have been inundated with racist death threats including some calling him the “N word” and emails that read, “Remember we are everywhere and we have guns.”

Same goes for Stormy Daniels who recently stated that since the indictment, the attacks have gone from calling her a “gold digger” to now being “straight-up violent.” She added, “This time it’s, ‘I’m gonna murder you’. They’re way more violent and graphic.”

Even Roger Stone’s former defense lawyer Bruce Rogow recently told Bloomberg News that a gag order on Trump to prevent violence was likely and appropriate. Rogow stated: “If Trump basically is trying to foment a riot, then I could see the court putting some limitations on him.” He added, “If there’s a threat to the administration of justice, a threat to safety, then I think the court could impose gag orders.”

This gag order would not—and should not-- limit Trump’s ability to campaign for President and talk issues, criticize President Biden, etc.  He can even declare he’s innocent at rallies or in the media—and raise funds from it. The limit would be on making comments that clearly could undermine the administration of justice and incite violence.

And if Trump violates these conditions, the hope is Trump is placed in custody to await his trial. Despite what the GOP want you to believe, Donald Trump is not above the law. No one is.

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