Manhattan District Attorney Alvin Bragg wants a gag order for Donald Trump — or, as the prosecution put it formally, “an order prohibiting defendant from making certain extrajudicial statements” ahead of his trial for allegedly falsifying business records.
Increasing the odds of success in obtaining such relief, Bragg has not only the benefit of Trump’s seemingly endless stream of menacing statements in legal settings to date, but also a recent precedent approving similar restrictions from the federal election interference case.
Recall that, in December, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit largely upheld U.S. District Judge Tanya Chutkan’s order restricting Trump’s statements in that case. The D.C. Circuit’s ruling allowed Trump to go after special counsel Jack Smith himself.
Bragg’s team noted in its filing requesting speech restrictions in the New York criminal case that the D.C. Circuit “recently upheld restrictions on defendant’s extrajudicial speech that are essentially identical to the ones requested by the People here.” Specifically, Manhattan prosecutors want an order preventing Trump from:
a. making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding; b. making or directing others to make public statements about (1) counsel in the case other than the District Attorney, (2) members of the court’s staff and the District Attorney’s staff, or (3) the family members of any counsel or staff member, if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result; and c. making or directing others to make public statements about any prospective juror or any juror in this criminal proceeding.
The first two requests, the prosecution wrote, “are identical to relief” the D.C. Circuit approved. The third, it added, “is necessary to protect the integrity of the jury and prevent juror harassment.” Jury selection is set for March 25.
For comparison, the D.C. Circuit panel affirmed Chutkan’s order in the federal election interference case to the extent it prohibits all parties and their counsel from making or directing others to make public statements about—(1) counsel in the case other than the Special Counsel, (2) members of the court’s staff and counsel’s staffs, or (3) the family members of any counsel or staff member—if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result.
So Bragg appears to be on solid footing in making the request in what will likely be the first criminal trial against a former U.S. president. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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