There is growing anticipation for a New York judge to place a gag order on Donald Trump, a move that may complicate the former president’s plan to deliver a speech after he is arraigned on Tuesday.
After a grand jury indicted Trump last week, the former president took aim at Manhattan District Attorney (DA) Alvin Bragg as well as the judge presiding over the case, stoking speculation about the potential for an order restricting what Trump can say outside the courtroom.
Criminal defense attorney Duncan Levin, who previously served as a staffer in the Manhattan DA’s office and as a federal prosecutor, told Insider that it is “extremely likely” there will be a gag order.
The threat is apparently real enough that the legal team behind Trump, who is months into his third presidential campaign, is looking to hire a First Amendment lawyer to “combat” efforts to silence him, a source told the Daily Mail.
Should Trump violate a gag order by openly speaking about the case, he could face penalties for criminal contempt. Under New York law, such a violation could result in a fine of up to $1,000, as many as 30 days in jail, or both.
Mike Davis, founder of the Article III Project, said gag orders “generally” protect the Sixth Amendment right of defendants to fair trials, but that does not preclude them from having First Amendment rights.
“Ordering any defendant not to speak about his charges would almost certainly violate the First Amendment,” he added in a post to Twitter. “Telling a presidential candidate he cannot respond to allegations —including media leaks — in a political prosecution is un-American.”
Harmeet Dhillon, whose Dhillon Law Group has represented Trump and some of his allies in various cases, said during a Fox News appearance late Sunday the court would have to consider whether limits on speech will affect the defendant’s right to a fair trial. Noting there have been selective leaks about the indictment, Dhillon added that a court typically would issue such an order on both sides.
Thank you @SteveHiltonx for having me on @NextRevFNC! A gag order preventing a presidential candidate and former President Trump from discussing the case is highly disfavored under the First Amendment. Will the media itself object to this unprecedented act in a political case? pic.twitter.com/NEewIblNrs
— Harmeet K. Dhillon (@pnjaban) April 3, 2023
Trump is the first former president to face criminal charges. He is expected to be arraigned in New York on Tuesday and plead not guilty. Law enforcement in New York has been stepping up security preparations.
Though exact details about the indictment remain unclear, Trump’s attorney Joe Tacopina told ABC News on Sunday he was certain they “revolve around” the payment of hush money to adult film actress Stormy Daniels during the 2016 election cycle in exchange for her silence regarding an alleged affair that Trump denies.
Trump’s re-election campaign announced on Sunday the former president would deliver a public address from his Mar-a-Lago resort in Florida on Tuesday night. What he plans to say remains to be seen, but Trump has already been very vocal about the Manhattan case.
In an all-caps post to Truth Social last month, Trump called on his supporters to protest and “take our nation back.” In recent days, Trump accused Bragg of “prosecutorial misconduct,” called him an “animal,” and said the district attorney is backed by leftist billionaire George Soros — an assertion from which Soros has sought to back away. In addition, Trump has attacked the presiding judge, acting New York Supreme Court Judge Juan Merchan, posting to Truth Social that the judge “hates” him and “strong armed” the Trump Organization’s former CFO Allen Weisselberg in a tax fraud case.
Such complaints led Cy Vance Jr., who passed on the Trump inquiry to Bragg when he left office as Manhattan district attorney at the end of 2021, to warn on NBC News that it “could take what perhaps we think is not the strongest case, when you add a count like that, put it in front of a jury – it can change the jury’s mind about the severity of the case that they’re looking at.”
In his appearance Sunday on ABC News, Tacopina said he does not personally believe the judge is biased, though he acknowledged Trump is “entitled to his own opinion.” The lawyer did, however, echo Trump in saying his client is the “victim of a political persecution.”