A gag order that severely limits what former President Donald Trump can say publicly about a case where a Democrat district attorney is seeking to put him in jail was the focus in court on Tuesday as part of the business records trial he faces in Manhattan.
Democrat District Attorney Alvin Bragg accused Trump of violating the gag order 11 times for allegedly attacking witnesses and other members of the court — even if they have attacked him.
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New York Supreme Court Judge Juan Merchan, who is presiding over the case and who imposed the gag order, could fine Trump up to $11,000.
As examples of attacks, Bragg’s team cited in an April 1 filing some of Trump’s posts on Truth Social, including one in which Trump called on Merchan to recuse himself from the case, and called him “biased and conflicted.”
Trump had posted:
The Judge has to recuse himself immediately, and right the wrong committed by not doing so last year. If the Biased and Conflicted Judge is allowed to stay on this Sham “Case,” it will be another sad example of our Country becoming a Banana Republic, not the America we used to know and love. These are Election Interfering Witch Hunts. We will crush each one of these Hoaxes, and Make America Great Again!
Merchan has not made a decision on whether or not Trump violated the gag order, but became impatient with Trump attorney Todd Blanche, who argued that Trump was responding to attacks against him and being careful not to violate the gag order.
Merchan responded testily, “Mr. Blanche you are losing all credibility. You are losing all credibility with the court.”
Trump attorney Will Scharf argued the gag order is “outrageously overbroad.”
“President Trump is being accused of violating the gag order by simply republishing on Truth Social claims made by others about various parties covered by the gag order, including Judge Merchan’s daughter. This shows how outrageously overbroad the gag order is,” he wrote in a memo obtained by Breitbart News.
New York Supreme Court Judge Juan Merchan listens as Emil Bove, a member of former President Donald Trump’s legal team, argues for his client in Manhattan state court in New York on April 19, 2024, in this courtroom sketch. (Jane Rosenberg via AP)
The gag order prohibits Trump from commenting on the potential testimony of witnesses in the case, prosecutors (other than Bragg), the court’s staff or their families, and any juror or prospective juror.
But Merchan also expanded it to include his own family members, after Trump pointed out that his daughter, Loren Merchan, is the president of a firm that runs digital campaigns for Democrat candidates, and whose prior clients include President Joe Biden, Vice President Kamala Harris, Rep. Adam Schiff (D-CA), and other Democrats.
Scharf called Merchan “irretrievably conflicted.”
“Judge Merchan’s gag order protects himself from scrutiny. We have repeatedly moved for him to recuse off of this case, owing to the fact that his daughter runs a Democrat fundraising company that has repeatedly raised money for its clients — President Trump’s political opponents — based on this case,” he wrote, adding:
Under New York’s judicial recusal law, a family conflict of interest of this sort clearly warrants recusal. His decision not to recuse is currently an issue on appeal to the New York appellate courts. Judge Merchan’s gag order prevents us from discussing the very real conflict of interest he has in this case arising out of his daughter’s work.
Trump on Tuesday reissued his call for Merchan to recuse himself, posting on Truth Social:
HIGHLY CONFLICTED, TO PUT IT MILDLY, JUDGE JUAN MERCHAN, HAS TAKEN AWAY MY CONSTITUTIONAL RIGHT TO FREE SPEECH. EVERYBODY IS ALLOWED TO TALK AND LIE ABOUT ME, BUT I AM NOT ALLOWED TO DEFEND MYSELF. THIS IS A KANGAROO COURT, AND THE JUDGE SHOULD RECUSE HIMSELF!
And under Merchan’s gag order, Trump also cannot respond to attacks against him if they are from a witness.
Michael Cohen, a former attorney for Trump who has since turned against him, is a witness in the trial and has been attacking Trump publicly in recent days.
On Sunday, during a livestream on TikTok, Cohen called Trump “a despicable human being” and “racist, misogynist, xenophobe, homophobe, Islamophobe, anti-Semite.” On Monday, Cohen called him “Von ShitzInPants.”
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However, under Merchan’s gag order, Trump is barred from defending himself against those smears.
Democrat activists accused Trump of attacking Cohen on Monday when he said, “When are they going to look at all the lies that Cohen did in the last trial? He got caught lying in the last trial. So he got caught lying. Pure lying.”
“The gag order is manifestly unfair,” Scharf wrote in the memo. “Notably, this gag order is unilateral. It applies only to President Trump and his team, and does not apply to DA Bragg, his staff, or any potential witnesses.”
“This is why Michael Cohen, a serial perjurer expected to be the prosecution’s star witness, is able to bash Trump relentlessly on TV, social media, and podcasts on a daily basis, while we are not allowed to attack his potential testimony directly,” he wrote.
Scharf also wrote that under the gag order, Trump cannot point out that the prosecutor who delivered the opening argument in the case was previously the No. 3 top official in the Biden Department of Justice, and initiated New York Attorney General Letitia James’s investigation into Trump and the Trump Organization.
Attorney General Letitia James speaks during a press conference following a verdict against former U.S. President Donald Trump in a civil fraud trial on February 16, 2024, in New York City. (Michael M. Santiago/Getty)
“Judge Merchan’s gag order prevents us from discussing Colangelo’s links to the Biden Administration, a key piece of evidence of the political motivation and coordination that underlies this case,” he wrote.
Scharf called the gag order “blatantly unconstitutional,” noting that in the history of the United States, no court has ever restricted the speech of a political candidate, even those who were criminal defendants.
“Political speech is at the heart of the First Amendment, and any restriction on political speech faces the utmost constitutional scrutiny. This is especially true in the case of prior restraints: restrictions on speech before the speech even occurs,” he wrote.
He argued there is no evidence Trump’s statements have impacted the proceedings, and that the Supreme Court has consistently rejected the idea that you can punish a speaker for actions that third parties might take in response to their speech.
“That is the prosecution’s best argument for the gag order, and it is constitutionally worthless,” he wrote.
“These are core issues of public importance, and the fact that President Trump cannot address them publicly as he campaigns for office and defends himself in the public eye is a manifest injustice,” he added.
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