“I distinctly recall seeing that the Trump gag order included surrogates saying the kinds of things Trump would like to say if it weren’t for the gag order. Aren’t they violating the gag order?”
— Lora Premo, Colorado Springs, Colorado
Hi Lora,
The gag order does apply to more than just things Trump says. Specifically, it bars the defendant from “making or directing others to make public statements” against witnesses, lawyers other than Manhattan District Attorney Alvin Bragg himself, staff and family members of Judge Juan Merchan and the D.A., and jurors. But the Republican politicians making the pilgrimage to Manhattan to denigrate the legal process aren’t bound by the gag order, even when the statements they make would violate it if Trump made them.
So, looking at the language of the order, the question is whether Trump “direct[ed]” these sycophantic politicians to make such statements, in which case the defendant would be in violation of the order, just as he was for the previous 10 violations that Judge Merchan found.
But while these words from Trump-aligned politicians are clearly made in service of their de-facto leader, that’s different from him directing them to make them. This is a hairsplitting distinction, but that’s what the order says. That’s part of why I won’t be surprised if Trump is not punished for these third-party statements: prosecutors would have to prove that Trump directed them.
Relatedly, as I wrote earlier this week, it’s important to consider where we are in both the life of the gag order and the life of the trial.
The state may want to get through the trial without dealing with this issue. As for the gag order, Merchan suggested that Trump’s next violation could result in jail time (as opposed to just fines). The prosecution previously resisted seeking jail, for fear of disrupting the proceedings. Now that the trial is nearing its conclusion, the state — and probably Merchan, too — may want to get through the trial without dealing with this issue. That’s not a good reason for prosecutors to avoid pursuing the matter, but if it’s ambiguous whether Trump is on the hook, they may use that as a reason to leave this alone. They still haven’t alleged that any new statements have violated the order, which suggests that this may be the course they have taken. Or, they could be willing to allege new violations but don’t think these third-party statements suffice. They certainly haven’t been shy about alleging violations during this case. At any rate, the fact that this defendant has amassed at least 10 violations of a court order without imprisonment is its own indictment of the system, which has kept Trump above the law in this respect, whereas others would have been locked up long ago. Have any questions or comments for me? I’d love to hear from you! Please email deadlinelegal@nbcuni.com for a chance to be featured in a future post.
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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