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Opinion: Can the New York court stop Trump’s rants? Here’s why a gag order would be a mistake

Donald Trump with two law enforcement officers on either side.
Former President Trump at the way to court Tuesday in New York.
(Mary Altaffer / Associated Press)
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Judge Juan Manuel Merchan should resist the temptation to impose a gag order on Donald Trump limiting his public statements. Just hours after Merchan admonished Trump to refrain from inflammatory public comments, Trump gave an angry speech at Mar-a-Lago attacking the prosecutor, the judge, the judge’s family and much else. Trump blatantly defied Merchan’s admonition.

The judge surely is frustrated and may be considering placing a gag order on Trump to restrict what he can say publicly about the case. But such an order would be a mistake.

As Merchan observed at Tuesday’s hearing, prior restraints on speech are generally considered to violate the 1st Amendment. In 1976, the Supreme Court ruled that placing gag orders on the press to keep it from reporting on pending cases is almost never acceptable, even when the goal is to protect a defendant’s right to a fair trial.

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Former President Trump appeared in New York and his indictment was unsealed. The charges involve his payment of hush money to Stormy Daniels.

April 4, 2023

The court, though, has never ruled on whether gag orders on parties to lawsuits and their lawyers are permissible. In the absence of direction from the Supreme Court, some courts have imposed such gag orders in other high-profile cases. But prior restraints on speech are nearly always considered a violation of the 1st Amendment. Trump’s candidacy for the presidency might raise another problem.

More important, it’s very unlikely that Trump would comply with such a gag order. He undoubtedly would rail against it as another injustice and another way to persecute him. No one who has watched the Trump show over the years can believe that he has the ability to restrain himself.

This would put the judge in an impossible position. On the one hand, he could ignore Trump’s violating the gag order. But then why issue it in the first place? Alternatively, he could hold Trump in contempt for violating the gag order, a charge that is punishable by jail. But doing that would heighten the problem and fuel more divisiveness.

As outrageous as it is to hear Trump attack the judge, the prosecutor and the proceedings, there is little to be gained by ordering him to shut up. The traditional argument for gag orders on lawyers and parties is to limit pretrial publicity and enhance the likelihood of a fair trial. That rationale, however, is highly dubious because there is little evidence that pretrial publicity, including self-serving statements of trial participants, actually matters to the outcome of cases. In this instance, given all the publicity surrounding the case, it is impossible to imagine that additional Trump statements will make the slightest difference in the outcome.

Moreover, regardless of whether there is a gag order, selecting a jury for a Trump trial inherently will be very difficult because everyone has strong opinions about Donald Trump and likely about this prosecution. Merchan will need to take extraordinary steps to protect the jurors, including keeping their identities secret to protect them from intimidation.

Think of the case in Manhattan as a mirror image of the Benghazi investigations that took aim at Hillary Clinton. This time the goal is justice, not shaming a political target.

April 4, 2023

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The impulse for a gag order on Trump may be to prevent him from exhorting his followers to engage in threats or even violence. If Trump incites violence or illegal activity, he can be punished if it is proven that he has done so. But courts have not allowed gag orders or prior restraints on speech before any incitement takes place.

Judges like to exercise control and Merchan is undoubtedly upset at Trump blatantly disobeying him. But the better course in this situation is to do nothing and let Trump speak.

Erwin Chemerinsky is a contributing writer to Opinion and dean of the UC Berkeley School of Law.

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