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(Photo by Win McNamee/Getty Images)
If Donald Trump has a superpower, it’s his ability to break unwritten rules and then defy anyone to try to stop him. This poses challenges for every branch of the government, but it’s currently stressing the judicial system mightily.
To wit: How the hell do you get the owner of the world’s biggest megaphone to stop aiming his pitchfork mob at the court and endangering anyone who tries to bring him to justice?
Last week, Justice Juan Merchan, who is presiding over Trump’s hush money case in New York, approved a gag order protecting line prosecutors, court staff, witnesses, and jurors in the case. Trump immediately turned around and spent two days lobbing hideous abuse at the judge’s daughter, claiming that she works for a democratic communications firm (which is true!) and that she posts anti-Trump propaganda on social media (which is false).
Normal defendants don’t have to be told not to sic their violent followers on the judge’s child. It’s one of the rules which doesn’t usually require memorialization — the accused’s sense of self-preservation usually takes care of that one. But no one has ever accused Donald Trump of being “normal,” so here we are.
District Attorney Alvin Bragg’s office responded on Thursday with a letter to the court requesting “clarification” of the order.
“The Court’s March 26 Order directed defendant to refrain from, inter alia, making public statements about ‘the family members of any counsel or [court] staff member, if those statements are made with the intent to materially interfere with, or cause others to materially interfere with, counsel’s or staffs work in this criminal case, or with the knowledge that such interference is likely to result,” they noted. “Just one day later, defendant made two social media posts targeting a family member of this Court.”
In a footnote, prosecutors linked to the offending Truth Social posts, requesting that the court make clear that the order protecting family members of court staff include that of the judge himself.
The first time this happened, in Trump’s civil fraud trial, his lawyers affected to be chagrined. They got him to take down the post attacking Justice Engoron’s clerk and promised the court that he’d never do it again. But when it became clear that they couldn’t control their client, they pivoted to defending his supposed First Amendment right to endanger court staff, and even made attacks on the clerk a centerpiece of their claims of bias and judicial impropriety.
This time, they knew better. Instead of conceding the obvious reality that Trump’s incendiary posts are wildly inappropriate, Todd Blanche, Emil Bove, and Susan Necheles complained loudly about “the constitutional problems attendant with any additional improper restrictions on protected campaign speech—which would implicate First Amendment rights that belong to not only President Trump but also the public, see Def. Opp’n 7- 11—where the family member referenced in the pre-motion letter is actively supporting adversarial campaign speech by President Trump’s political opponents.”
This argument was already rejected by the DC Circuit when Trump challenged the gag order which formed the template for Justice Merchan’s ruling. The lawyers also neatly — if disingenuously — stepped around the reality that Trump has attributed social media posts to the judge’s daughter which court staff have denied come from her. (Just as he did with Justice Engoron’s wife.)
Bizarrely, Trump’s lawyers cite to media articles as proof that his attacks did not violate the gag order. For instance, the AP reported that the order “does not bar comments about Merchan or his family, nor does it prohibit criticism of Manhattan District Attorney Alvin Bragg, the elected Democrat whose office is prosecuting Trump.”
It’s a weird flex in defense of a client who howls about the “fake news” every day, but when you’re defending a guy who breaks every rule and gets away with it … YOLO!
People v. Trump [Case Docs via Just Security]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
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