On Monday, the first day of jury selection in Donald Trump’s first criminal trial, Judge Juan Merchan ordered a hearing to be held next Tuesday over the defendant’s alleged gag order violations. Apparently undeterred by the possibility of consequences, or perhaps not believing that any serious consequences will come, Trump has since then continued to engage in behavior that may have violated the gag order.
In fact, a prosecutor with Manhattan District Attorney Alvin Bragg’s office said Thursday morning that Trump has violated the order seven times since then.
The most disturbing alleged violation, according to the DA’s office, is a Truth Social post of Trump’s from Wednesday, in which the former president posted a quote, attributed to Fox News host Jesse Watters: “They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury.”
Trump’s post didn’t specify which jurors, but in any event, it would appear to violate the plain text of the gag order. When it comes to juror-related statements, Merchan’s order bars Trump from “making or directing others to make public statements about any prospective juror or any juror in this criminal proceeding.”
It’s certainly a public statement made by Trump. To be clear, it wasn’t a “ReTruth” (i.e., a re-post) of Watters’ statement, whatever that would mean for the analysis. Rather, the post on Trump’s account appears to be simply the typed-out text of that quote, attributed to Watters.
Of course, merely attributing a quote to someone else couldn’t possibly serve as an automatic loophole to a prohibition against making statements about jurors. If this point truly needs illustrating, would there be any question that he couldn’t post a direct threat against a specific juror’s life if they vote to convict him, simply by dressing that threat up in a quote from someone else? Plus, Merchan’s order doesn’t even specify a minimum level of danger that a statement would need to meet but simply says that Trump can’t make any juror statements.
That would only leave the question of whether it’s “about any prospective juror or any juror in this criminal proceeding.” That, too, is easily answered against Trump. The quote could refer to prospective jurors as ones who were purportedly “[caught],” and thus not placed on the jury, or to people who did make the jury, which could be even worse.
In any event, it’s a public statement by Trump about jurors, prospective or seated, in this case.
To be sure, we’ll see what Trump’s lawyers have to say about this before Merchan rules. Will they argue that attributing the quote to someone else saves Trump? That he wasn’t talking about a specific juror or prospective juror, and so it’s fair game to complain about the process generally? That, to the extent it was a public statement by Trump about jurors, it’s untrue and so shouldn’t be taken seriously? That there’s some magical former president/presumptive nominee exception to threatening jurors? The latest violation allegations came from Bragg’s office as jury selection resumed Thursday. Heading into the day, seven jurors had been selected. But that number dwindled to five, after one of them raised concerns about their identity becoming public. A second juror, who was dismissed for undisclosed reasons, also expressed annoyance about how much information was out there about them in the public. Though their dismissals didn’t come in connection with the gag order discussion, it underscores the concerns that jurors may feel for their safety. So if the gag order is meant to ensure the integrity of the proceedings, it must be enforced. This raises the question, yet again, of what Merchan will do. When it comes to the prior social media posts that have already led prosecutors to push for contempt sanctions, the prosecutors argued Merchan should fine Trump $1,000 for each of the prior three posts and warn him about possible jailing for further violation. This time, on Thursday, the DA’s office reportedly said they’re considering their options for sanctions. We should learn more about what Merchan thinks about all of Trump’s alleged violations — and any further ones that come — on Tuesday. 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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