A gag order for Donald Trump is 'extremely likely' once he's before a judge, legal expert says
Donald Trump can't seem to stop talking about his indictment, but he may have to soon.
It's "extremely likely" he'll be put under a gag order, one former federal prosecutor said.
Punishment in New York for criminal contempt could be a $1,000 fine, 30 days in jail, or both.
Former President Donald Trump can't seem to stop talking about his indictment. But once he's arraigned, it's "extremely likely" that he'll have to, a former senior staffer with the Manhattan District Attorney's Office told Insider.
His freedom to rant on Truth Social and speak about his case at rallies will likely change once he appears in a Manhattan courthouse, according to Duncan Levin, who is also a former federal prosecutor with the Department of Justice.
Manhattan's Acting Supreme Court Justice Juan Merchan, who is expected to arraign Trump on Tuesday, is likely to put conditions on his release, and that's "most likely" when the judge will issue a gag order, restricting Trump from discussing the case, Levin said. If Trump violates it by speaking about the litigation outside the courtroom, he could face consequences.
Punishment for criminal contempt, under New York law, is a fine not exceeding $1,000, jail for up to 30 days, or both.
"I think it's not only a possibility, but it's extremely likely that there will be a gag order in the case," said Levin, known for representing clients including Harvey Weinstein and Anna Sorokin. "Gag orders are very common in criminal cases, particularly in cases where there is an enormous amount of pretrial publicity like this one."
Trump on Thursday became the first former president to ever be indicted following an investigation into his alleged role in a hush-money payment to the adult-film star Stormy Daniels during his 2016 presidential campaign. He could potentially be charged in multiple other ongoing investigations.
A Trump spokesperson did not respond to a request for comment.
It's hard to imagine Trump, now a 2024 presidential candidate, not speaking about this case at one of his campaign rallies. He has already been using it in fundraising emails, Facebook ads, and in Truth Social posts, targeting Manhattan District Attorney Alvin Bragg and Merchan. His campaign is even hawking "I Stand With Trump" t-shirts along with the date of his indictment.
Trump says the case is a "Witch-Hunt" perpetrated by Democrats, that Bragg is "doing Joe Biden's dirty work," and that Merchan "HATES ME." Merchan presided over the Manhattan tax fraud case in which the Trump Organization was found guilty.
His lawyer, Joe Tacopina, told NBC's "Today" on Friday that Trump was "initially shocked" by news of the indictment, but he is "ready to be combative" in defending himself.
A code of professional conduct precludes lawyers from out-of-court statements about pending litigation meant to sway a jury pool, Levin said. Their public statements are limited to routine details, such as the date of the next court appearance. But the judge is likely to issue a gag order on lawyers from both sides, along with Trump, he said.
If there's a gag order, Levin said Trump will be "very limited" in what he's able to say, even if there may be proxies who speak for him. The court has the ability to set the rules for his conduct while he's most likely to be out on bail, pending proceedings.
"This is a criminal case now, so the rules have changed, and the rules are no longer in his purview to make," Levin said. "He is a criminal defendant and, you know, we see hundreds of thousands of criminal defendants across the country every day who have a lot of rights stripped away from them and he is now one of them. These proceedings are going to change his life."
Former Indiana Attorney General Jeff Modisett said he also expected that a judge could narrowly craft a gag order that could survive an appeal. He added that Trump's status as a presidential candidate certainly complicates the First Amendment questions that are always present when such an order is considered.
"I could see where in a case like this based upon statements like that a judge could ... issue a gag order," Modisett said after an Insider reporter read the former president's attack on Merchan to him. "Given Donald Trump's history in litigation there is likely to be an appeal, but a carefully defined, narrowly restricted gag order would be upheld by the courts on appeal."
Judges like to give people a number of chances before punishing them for violating a gag order, so it's unlikely one violation would be punished harshly, Levin said. But violations after a warning, he said, "would likely lead to contempt of court."
"Theoretically, a litigant who breaks a gag order could be thrown in jail," he said.
Levin said that Merchan is an "absolutely no-nonsense judge" who will "keep a very tight control on the proceedings."
"Extrajudicial statements by Trump are not going to be looked on kindly by this judge," he said. "If the judge finds that he's crossed a line you'd better believe that this judge is going to do something about it."
Trump is notorious for attacking judges, especially those he views as unfavorable to himself.
In 2016, Trump lashed out at US District Judge Gonzalo Curiel, suggesting that Curiel's ethnicity meant he would not be fair.
The comments set off a firestorm, leading then-House Speaker Paul Ryan to deem them "the textbook definition of a racist comment." As president, Trump lit into federal judges for halting his administration's immigration policies. Chief Justice John Roberts made a rare public statement, issuing an implicit rebuke of the president and defending the judiciary against Trump's attacks.
Roger Stone, Trump's longtime friend, was slapped with a gag order in 2019 amid special counsel Robert Mueller's investigation, banning the self-described political trickster from posting about his case on Instagram and other social media platforms. Judge Amy Berman Jackson imposed the restrictions after Stone violated a less stringent gag order by posting an image of her on Instagram with what appeared to be crosshairs.
Bruce Rogow, a former defense attorney for Stone, previously told Bloomberg Law that if Trump were to threaten the court's safety then he could see a gag order being imposed.
"If Trump basically is trying to foment a riot, then I could see the court putting some limitations on him," Bruce Rogow told Bloomberg. "If there's a threat to the administration of justice, a threat to safety, then I think the court could impose gag orders."
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