Should Trump's judge muzzle him?

New York Supreme Court Justice Juan Merchan warned Donald Trump against making inflammatory remarks that could "incite violence and civil unrest" as the former president faces criminal charges related to hush money payments to a porn star. But Merchan stopped short of issuing a gag order, saying he wouldn't impose one "at this time even if it were requested." Merchan noted that Trump "is a candidate for the presidency of the United States, so First Amendment rights are critical."

Trump, the frontrunner for the 2024 presidential nomination, immediately put Merchan's decision to the test. Trump, who has warned the charges against him could spark "potential death & destruction," told a roomful of supporters at his Mar-a-Lago residence and Club in Florida after the New York court hearing that Merchan was "a Trump-hating judge with a Trump-hating wife and family," calling attention to the judge's daughter's work in a consulting firm that raises money for Democrats, and did work for the Biden-Harris 2020 campaign. Merchan and his family have received threats since Trump's New York arraignment this week, as did the prosecutors in the case in the office of Manhattan District Attorney Alvin Bragg.

Legal experts say if Trump's comments disrupt the proceedings Merchan might be justified in imposing a gag order to bar Trump and his legal team from talking publicly about the case. But that might provoke a backlash from Trump's supporters. Rep. Jim Jordan (R-Ohio), chair of the House Judiciary Committee, said it would be unconstitutional to tell Trump he can't talk about his case. "To put any restrictions on the ability of President Trump to discuss his mistreatment at the hands of this politically motivated prosecutor would only further demonstrate the weaponization of the New York justice system," Jordan said.

This is a tough call

Merchan is in an "unenviable position," said Dahlia Lithwick in Slate. Either he lets Trump "lie and level threats throughout this criminal proceeding," or he tries to "shut him up and watch him claim to be a free-speech victim." That's a tough call on a good day. At the start of a criminal case against "a former president running to be the next president, it's a minefield."

"No one wants to restrict the speech of a presidential candidate during a campaign," said Sophia Cai in Axios, but Trump might leave the judge with no choice. "Trump often has courted chaos, figuring he's at his best on a muddied playing field." Judge Merchan warned Trump there could be consequences for incendiary rhetoric. Trump "practically dared the judge" to try to shut him up when he went right out and directed a "barrage of insults" at Merchan and his family. Trump might talk himself into a gag order Merchan doesn't want to impose. The question is when "he might cross Merchan's line in the sand on rhetoric."

Gagging Trump would be a mistake

The Manhattan district attorney, Alvin Bragg, wants Trump to be muzzled, said the Boston Herald in an editorial. But that would be "folly." "If Bragg is really being nonpolitical — and we have serious doubts about that — he should allow Trump to speak his mind." If the indictment is legitimate, rather than the "paper-thin example of prosecutorial abuse" Trump and his supporters claim, "then that's what will stand up in court," so there's no reason to violate Trump's right to free speech.

Prosecutors scolded "the defendant for his outraged self-defense," said The Wall Street Journal in an editorial, waving printouts of his social media posts reacting to his indictment. They insisted that Trump's exercise of his free speech rights amounted to "fomenting public unrest." The judge saw right through it. But don't expect the prosecution to drop it. They're seeking a January trial. "Until then, they'll be vying over what Mr. Trump can and can't say about the case as much as over the 34 charges revealed in the indictment."

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