NEW YORK (AP) — Virtually every day of the trial where he is accused of having paid to silence complaints against him, former President Donald Trump talks about how he cannot talk about the case.
A gag order prohibits Trump from publicly commenting on witnesses, jurors and certain other people connected to the matter. The New York judge has already determined that the presumptive Republican presidential candidate repeatedly violated the order, fined him $9,000 and warned him that he could go to jail if he does not comply.
But the order does not prevent Trump from speaking about the allegations against him or commenting on the top judge or prosecutor. And that does not prevent him from testifying in court if he so wishes.
As he fights felony charges against him while running for president, Trump has at times created confusion about what he can and cannot do in the case, in which he has pleaded not guilty. So what is the use of the order and why did it originate?
WHAT IS A GAG ORDER?
Broadly speaking, a gag order is a directive from a judge prohibiting a person or persons involved in a court case from publicly commenting on some or all aspects of the case. In Trump’s case, it is titled “Order Restraining Extrajudicial Statements,” where “extrajudicial” means out of court.
Gag orders, particularly 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 case for criminal interference in the federal election, in Washington. That order limits what he can say about witnesses, lawyers in the case and court staff, although an appeals court freed him to talk about special prosecutor Jack Smith, who brought the case.
At his recent civil fraud trial in New York, Trump was fined a total of $15,000 for comments he made about that judge’s law clerk after a gag order prohibited participants in the trial from “publishing, sending emails or speak publicly” about court personnel.
The United States Supreme Court has recognized that gag orders can conflict with the right to a fair trial and the right to free speech. The court struck down some orders barring the press from reporting on certain cases or court proceedings, and rejected a Nevada court ruling that limited what all attorneys could say outside of court as too vague.
IS TRUMP RESISTING THE GAG ORDER?
Yes. Before the trial, he asked a state appeals court to postpone the trial while he appealed the gag order, but the court refused. His appeal remains ongoing.
WHO DOES THE SILENCE ORDER ON TRUMP COVER?
Initially imposed on March 26, the gag order prohibits Trump from making or directing others to make public statements about any juror and any “reasonably foreseeable” participation of a witness in the investigation or trial.
It also prohibits any statements about case attorneys, court staff, assistant prosecutors, and family members of all of the above, to the extent the statements are intended to “materially interfere or cause others to materially interfere” with their work on the case “or with the knowledge that such interference is likely to occur.”
The order does not apply to Judge Juan M. Merchan or Alvin Bragg, the Manhattan district attorney whose office is bringing the case. However, it does apply to comments about his family. Merchan added that provision on April 1 after Trump lashed out on social media at the judge’s daughter, a Democratic political consultant, and made a claim about her that was later repudiated by judicial officials.
Trump is also allowed to talk about his political opponents, as Merchan made clear Thursday.
The order also does not prevent witnesses from commenting on Trump. Michael Cohen, Trump’s former lawyer and long-awaited witness, has routinely attacked his former boss, prompting Trump to complain that he cannot respond in kind.
CAN TRUMP TESTIFY?
Yes. The United States Supreme Court has held that criminal defendants have the constitutional right to take the stand to defend themselves, or not to take the stand.
There was some confusion after Trump said Thursday that because of the gag order he was “not allowed to testify.” In context, it seemed like she was actually referring to his ability to answer a reporter’s question in the courtroom hallway about a witness’s testimony that afternoon.
Trump clarified to reporters on Friday that he understood the order was not a ban on testifying. Merchan stressed the same thing in court.
“I want to emphasize, Mr. Trump, that you have the absolute right to testify at trial, if that is what you decide to do after consulting with your attorneys,” Merchan said.
WHY WAS TRUMP FINED? WHAT CAN’T YOU SAY?
Merchan found that Trump violated the gag order with social media posts attacking Cohen. Among the offensive posts: one that asked if “disgraced lawyer and criminal Michael Cohen has been put on trial for LYING,” the sharing of a New York Post article that described Cohen as a “serial perjurer,” and a post by Trump which was referring to Jesse Watters, host of the Fox News network, about liberal activists lying to infiltrate the jury.
Merchan noted that Trump’s comment on Watters’ segment falsely stated what the host had actually said, resulting in the comment being “the words of the defendant himself.”
Separately, Merchan declined to sanction Trump for an April 10 post that referred to Cohen and Stormy Daniels — the porn actress who was paid $130,000 to maintain her silence about an extramarital affair with Trump and who is in the center of the case—as “human garbage.”
Trump maintained that he was responding to Cohen’s earlier comments, and the judge said the exchange caused him to reflect on whether that post met the standards of a violation.
COULD TRUMP REALLY GO TO JAIL FOR THE GAG ORDER?
When Merchan fined Trump $1,000 for each of nine violations — the maximum fine allowed by law — he wrote that “jail may be a necessary punishment” for some wealthy defendants who will not be deterred by such an amount.
Merchan added that he “will not tolerate continued deliberate violations” of the gag order, and that if “necessary and appropriate,” he will “impose a punishment of imprisonment,” i.e., jail.
It is unclear what would rise to the level of “necessary and appropriate.”
Todd Blanche, the defense attorney, 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 find Trump in contempt again and fine him $1,000 for each of the four alleged violations committed between April 22 and 25. But the prosecution is not asking that the former president be imprisoned for those comments because they occurred before Merchan’s imprisonment warning and because “we would prefer to minimize the interruption of this procedure,” said prosecutor Christopher Conroy.
