President Donald Trump shouldn’t be prevented from speaking about witnesses such as his former attorney Michael Cohen who publicly criticize him on a regular basis, legal experts told the Daily Caller News Foundation.
Judge Juan Merchan on Tuesday morning considered allegations that Trump violated his gag order by, among other things, attacking witnesses like Cohen and porn star Stormy Daniels. Trump, who was indicted last April on 34 counts for allegedly falsifying business records in relation to a $130,000 payment Cohen made to keep Daniels quiet about her claims of an affair, now faces financial penalties and even jail time if Merchan finds he violated the gag order.
NEW YORK, NEW YORK – MARCH 25: Former U.S. President Donald Trump appears with his lawyer Susan Necheles for a pre-trial hearing in a hush money case in criminal court on March 25, 2024 in New York City. Trump was charged with 34 counts of falsifying business records last year, which prosecutors say was an effort to hide a potential sex scandal, both before and after the 2016 election. Judge Juan Merchan is expected to set a new start date for the trial after it was delayed following the disclosure of new documents in the case. (Photo by Curtis Means-Pool/Getty Images)
“I think it is totally unfair and unjustified and a clear violation of the First Amendment,” Hans von Spakovsky, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told the Daily Caller News Foundation. “The only viable restriction on a defendant are public statements directly physically threatening harm to witnesses and other court personnel. But otherwise, a defendant has a constitutional right to criticize and point out the bias of witnesses, prosecutors, and court personnel, including the judge.”
“This is especially true when the main witness for the prosecution, Michael Cohen, is a convicted perjurer who is publicly criticizing the defendant,” he continued. “Merchan’s behavior is unconscionable and a sign of his bias. He should recuse himself from presiding over this case as his impartiality is in serious doubt.” (RELATED: Manhattan DA Bragg Threatens Trump With Jail Time For Gag Order Violations, Urges Judge To Hold Him In Contempt)
Merchan imposed the gag order on Trump on March 26. He expanded it April 1 after Trump attacked his daughter on social media.
NEW YORK, NEW YORK – MARCH 25: Former President Donald Trump listens as his attorney Todd Blanche speaks during a press conference at 40 Wall Street after a pre-trial hearing on March 25, 2024 in New York City. Judge Juan Merchan scheduled Trump’s criminal trial to begin on April 15, which would make it the first criminal prosecution of a former American president. Trump was charged with 34 counts of falsifying business records last year, which prosecutors say was an effort to hide a potential sex scandal, both before and after the 2016 election. (Photo by Michael M. Santiago/Getty Images)
The order prevents Trump from making statements about witnesses, prosecutors other than the district attorney, court staff, jurors and family members of the staff, district attorney or judge.
District Attorney Alvin Bragg urged the judge to impose the maximum $1,000 fine on Trump for each alleged violation.
During Tuesday’s hearing, Trump attorney Todd Blanche argued Trump is “allowed to respond to political attacks.”
“There is no dispute that President Trump is facing a barrage of political attacks from all sides, including from the two witnesses referenced in the early post,” he said, according to Politico.
Merchan told Blanche he was “losing all credibility” by arguing Trump was being careful and trying to comply with the order.
DAY 6: Trump’s trial continues with its first witness, David Pecker, on the stand.
But first, Trump faces criminal contempt – ten counts – for social media posts attacking key prosecution witnesses Michael Cohen & Stormy Daniels.
Contempt hearing 9:30am. Pecker re-starts 11am. pic.twitter.com/H4GE3FOuQG
— Frank G. Runyeon (@frankrunyeon) April 23, 2024
Former federal prosecutor Francey Hakes told the Daily Caller News Foundation that the gag order is “entirely unconstitutional,” noting that the case is “inextricably intertwined with politics” and is being prosecuted by a Democratic district attorney who “pledged to find a case to prosecute Trump if he was elected.” (RELATED: Judge In Bragg Trial Tells Trump Attorney He Is ‘Losing All Credibility’)
“The witnesses in the case have an unusually high profile and impugn Trump’s character, and insist he is guilty of the crimes charged, on a regular basis,” Hakes said. “The prosecutor who offered the opening statement recently worked at a very high level at the Department of Justice in DC, a very unusual career path, to say the least.”
George Washington University law professor Jonathan Turley likewise pointed out on Fox News early April that the order was preventing Trump from responding to Michael Cohen’s frequent attacks.
“You know, you’ve got Michael Cohen, who is going on the air every night attacking Trump, basically campaigning against him,” Turley said. “He is not allowed to respond.”
The court’s public information office did not immediately respond to a request for comment.
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