Donald Trump turned a Manhattan courthouse into a bully pulpit this week, creating photo ops and sound bites of him railing about his civil fraud trial for his presidential campaign to blast out on social media and in fundraising appeals.
(Bloomberg) — Donald Trump turned a Manhattan courthouse into a bully pulpit this week, creating photo ops and sound bites of him railing about his civil fraud trial for his presidential campaign to blast out on social media and in fundraising appeals.
But this publicity spectacle earned him a lesson: Judges can impose real-world consequences for what he says or does out of court.
State Supreme Court Justice Arthur Engoron issued a partial gag order on Tuesday hours after Trump attacked a law clerk in a since-deleted online post. Federal prosecutors are keeping tabs, too, cataloging the former president’s social media vitriol in court papers and alerting a judge that he recently skirted violating the conditions keeping him out of jail ahead of trial.
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Trump “seems to be daring judges to take action against him,” said retired federal judge John Jones III.
With the exception of arraignments, Trump hasn’t appeared in court in the numerous civil and criminal cases he’s been a party to in recent years. He wasn’t required to be at the New York trial but capitalized on the heavy media turnout to denounce the case, criticize New York Attorney General Letitia James, and offer snap assessments — he declared Tuesday a “perfect day” shortly before Engoron announced the gag order.
Going after a clerk “was like a big, fat pitch right over the plate” in getting a swift reaction from Engoron, Jones said. A judge’s staff can be like family, he added. But Jones said he expected judges would be cautious about more broadly restricting Trump’s free speech rights, especially amid a presidential run.
Trump left New York on Wednesday afternoon and was back on the attack early Thursday, posting disparaging messages online about Engoron — calling the judge “radical” and “highly political” and his rulings “a horror show” — though he didn’t mention court staff. Trump’s former lawyer and fixer, Michael Cohen, whose congressional testimony about Trump’s business triggered the New York fraud probe, said he thinks the former president would continue to “poke the bear” by testing the judge’s limits.
Cross the Line
“Judges are capable of negotiating the First Amendment challenges, but you have to really be careful with him that you are as explicit as possible about what is allowed and what’s not,” said Jones, now the president of Dickinson College. “If he doesn’t cross it, he’ll walk it right up the line.”
Trump is facing trials next year in the four state and federal criminal cases against him as well as in a civil defamation lawsuit in New York.
Judges can restrict what parties and lawyers say about a pending case. Those orders are usually rooted in concerns about prejudicing the pool of potential jurors and protecting witnesses, other litigants and lawyers and court personnel. Such orders are rare, though. Judges are also supposed to balance a defendant’s First Amendment rights and their ability to mount a defense.
Another challenge is enforcement. Jones said judges typically take a gradual approach, starting with a warning to the lawyers before ordering a defendant to show up for an in-person rebuke. They can try to narrow a gag order to only cover certain types of speech — Trump ally Roger Stone faced a social media ban when he was under federal indictment, for instance — versus barring a defendant from speaking about a case altogether.
Fines, Jail Time
Once a gag order is in place, judges can explore options such as monetary fines before taking the most extreme step of putting a person in jail for contempt or violating pretrial release requirements.
Earlier in the week, Engoron had warned Trump’s lawyers about the statements their client was making about the trial. The situation came to a head midday Tuesday, when Trump posted disparaging comments about the judge’s principal law clerk and shared her photo.
The post was later deleted, but that didn’t stop Engoron from announcing he was prohibiting Trump and anyone else in the case from commenting or posting about his staff. He warned any violations would lead to “serious sanctions.”
In Washington, where Trump is charged with conspiring to obstruct the 2020 presidential election, Special Counsel John “Jack” Smith’s office has asked US District Judge Tanya Chutkan to limit what he can say about witnesses, the potential jury pool and other people involved in the case. The government’s filings not only quote Trump’s online posts and media commentary about the case, but also feature information about his other activities.
Read More: Trump Prosecutor Calls for Partial Gag Order on Ex-President
In late September, Trump’s campaign had promoted his stop at a South Carolina gun shop, sharing a video of him admiring a pistol decorated with an image of his face and stating in a caption that the former president had bought it.
Although the campaign later clarified that Trump did not, in fact, purchase the gun, prosecutors still noted the event in a court brief. They wrote that it would be a crime for Trump to buy the gun since he’s under a felony indictment and would violate his pretrial release conditions. Smith’s office argued it was part of a pattern of him making “incendiary public statements” and then trying to “avoid accountability” by having others “feign retraction.”
Trump’s defense team is fighting the gag order request, claiming it’s part of an effort to interfere with his presidential run and would violate his free speech rights.
The briefing wrapped up before the latest flap in New York over Trump’s post about the law clerk, but it could come up when Chutkan hears arguments on Oct. 16.
–With assistance from Erik Larson and Patricia Hurtado.
(Updated in paragraph seven with new Trump posts.)
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