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Judge should avoid issuing gag order on Trump in criminal case, legal experts say

Former president Donald Trump appeared in court for his arraignment on Tuesday in New York.Curtis Means/Associated Press

The New York City judge presiding over former president Donald J. Trump’s prosecution should refrain from issuing a gag order in the case, despite the Republican’s track record of publicly denigrating authorities involved in criminal inquiries into his actions, legal specialists said Wednesday.

“A gag order against the declared [front] runner in a presidential contest would run headlong into First Amendment protections of political speech,” said Mark J. Geragos, a defense lawyer whose clients have included former Congressman Gary Condit and Roger Clinton, brother of former president Bill Clinton.

“The defense would also argue that Trump is entitled to counteract what he perceives as leaks from the prosecution,” Geragos added by e-mail.


Trump, who has declared his candidacy for Republican presidential nomination in 2024, pleaded not guilty Tuesday in state court in Manhattan to 34 counts of falsifying business records related to payments allegedly made to an adult film star in exchange for her silence about an alleged sexual encounter with Trump.

Trump has denied wrongdoing and has repeatedly denied having a sexual encounter with the actress, Stormy Daniels.

At Trump’s arraignment, Judge Juan Merchan said he wasn’t imposing a gag order but asked both sides to refrain from comments that could lead to civil unrest.

In coming to that decision, Merchan had to weigh competing interests in the unprecedented case against a former president seeking reelection, according to Daniel S. Medwed, a law professor at Northeastern University and a former Legal Aid Society appellate attorney in New York City.

“For one thing, the defendant is a public figure who is running for the highest office in the land; there could be a significant First Amendment issue with limiting his speech on a matter of concern to the electorate,” Medwed said by e-mail.

In addition, prosecutors could see an upside to letting Trump speak freely, he said.


“I think it might be to the government’s advantage to let Trump talk,” Medwed said. “Anything he says could be introduced under the ‘party’s own words’ evidence rule, which holds that a defendant’s out of court statements are treated as ‘non-hearsay’ and can be admissible in court. Loose lips sink ships, and Trump is in choppy waters as it is.”

Yet Trump won’t likely have free rei n to say whatever he pleases outside the confines of official court proceedings.

“The judge could change his mind if Trump violates the admonition against denigrating the parties — which seems virtually inevitable — but that could just prolong the case and create another legal issue,” Medwed said. “Delay is often the objective for criminal defendants, and I wouldn’t be surprised if Trump pushes the envelope as far as possible, in part for political reasons and in part to possibly trigger a gag order and generate another contestable issue.”

Indeed, just hours after Merchan’s warning, Trump held a defiant rally at his estate in Florida, calling Merchan “a Trump-hating judge with a Trump-hating wife and family”

Trump also singled out Merchan’s daughter, while his sons shared articles about her on social media.

Trump also blasted other ongoing investigations targeting him, especially a probe into Trump’s efforts to pressure Georgia election officials to overturn the 2020 presidential results and a separate federal investigation into his handling of classified documents.

“The only crime that I have committed is to fearlessly defend our nation from those who seek to destroy it,” said Trump, who before Tuesday’s arraignment had posted a photo on social media of him holding a baseball bat next to an image of Manhattan District Attorney Alvin Bragg.


Martin G. Weinberg, a criminal defense lawyer in Boston, said that imposing a gag order would be “complicated by the unique intersection of politics, law, and precedent.”

Such orders are far more common in federal criminal proceedings, Weinberg said.

He said they must be “very narrowly tailored to avoid First Amendment violations for prior restraint, and gag orders must be enforceable by a court’s power to sanction any violations.”

“That a criminal defendant is a leading contender for the presidency understandably deters a state judge from issuing one at a first appearance: such an order would have the appearance of chilling a political candidates free speech and his ability to persuade future voters that the charges are political and not justifiable,” he said.

But after Trump’s combative speech, that could change, he said. .

“If Mr. Trump were before a federal judge, as he may soon be, we could expect a strong but precise and narrow gag order that would prohibit inciting communications in the future,” he said.

Material from the Associated Press and the Washington Post was used in this report.

Travis Andersen can be reached at