OPINION: President Trump could pay a price if he refuses to comply with gag orders

Editor’s note: Norman Eisen is a CNN legal analyst and editor of .Trying Trump: A guide to his first election interference criminal trial” He served as an advisor to the House Judiciary Committee during Trump’s first impeachment and trial. The views expressed in this commentary are his own.read more opinions On CNN.

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Perhaps the most striking thing about former President Donald Trump’s criminal trial, which opened Monday, was the extraordinary nature of the judge and jury going through all the usual moves I’ve seen hundreds of times. It was a juxtaposition of mediocrity. The president took the stand for the first time.

But Tuesday morning will be unlike anything I’ve ever seen in my 30 years of practicing criminal law. After the court opened at 9:30 a.m., Judge Juan Melchan ruled against prosecutors’ request to hold Trump in contempt of court and impose sanctions on 10 counts of violating a gag order for verbally attacking witnesses and even jurors. We are planning to consider it. Seven of the 10 participated after President Trump was notified of and involved in the gag order hearing. An 11th case could emerge after Monday’s court and could be mentioned even though it has not been formally sanctioned.

Based on the relevant New York state law and my legal analysis of the 10 statements at issue, I believe it is very likely that Merchan will be sanctioned for at least some of the misconduct. (This essay employs the arguments developed in that comprehensive analysis.) First, the gag order means that President Trump is unable to testify against witnesses, the prosecutor’s legal team and staff (with the exception of District Attorney Alvin Bragg), It is prohibited to make public statements or give instructions to others about jurors, judges, etc. A court employee or a family member of a court or prosecutorial employee.

Among the statements cited by prosecutors were President Trump’s April 10 Truth Social posts about Stormy Daniels, who allegedly arranged the hush money payment, and the former Trump lawyer who brokered the payment. There is a mention of Michael Cohen. In his post, President Trump called them “two despicable people who have done so much damage to our country with their lies and false reporting!” Prosecutors also said Trump targeted the former fixer in another Truth Social post just three days later that read, “Was disgraced lawyer and felon Michael Cohen accused of lying?” Quoted. Only Trump associates will be prosecuted by this judge and these thugs! It’s a dark day for our country. ”

Prosecutors want Marchan to insult Mr. Trump for these and eight other comments, asking a judge to fine him $1,000 for each remark and subject Mr. Trump to maximum penalties for future violations. It seeks to impose a sanctions order that includes a warning that he risks 30 days in jail.

Mr. Trump will likely raise many defenses, but there is one defense he is expected to press most aggressively, and it highlights the unique nature of this case. He will almost certainly try to claim that his posts are not threatening. They are simply defending themselves from attacks that affect their campaigns. It’s something Trump, a leading presidential candidate, will undoubtedly argue is well within his First Amendment rights.

His lawyer, Emile Bove, has already made his case clear in court, saying that Trump’s posts targeting Cohen were “political in nature and that Cohen’s comments in connection with the campaign were “The purpose of the gag order is to protect the law,” and argued that the gag order does not interfere. They do not constitute a violation of the order because President Trump “does not respond to political attacks.”

President Trump’s right to political speech is, of course, protected by the First Amendment. In fact, that is part of the reason why the limits of gag orders are so narrowly tailored. But the problem for him is that rights are not absolute in criminal proceedings. As the court found in issuing the gag order, President Trump’s history of attacks on his opponents poses a serious threat to (among other things) the safety of witnesses and jurors and the integrity of the trial. Legally, such a narrow restriction is justified.

Furthermore, the comments in question were about the court case and not at all about President Trump’s campaign.

Mr. Machan has proven himself to be a fair and thoughtful jurist, often seeking compromises. I expect his ruling to reflect this larger tension symbolized by candidate Trump and defendant. A judge could order sanctions for some, but not all, of President Trump’s statements.

For example, one might argue that simply quoting someone else’s words without editing, as Trump has done in some of his posts, is not a clear enough violation of the order, but then again They may make it clear in strong terms that this should not happen.

And for the other posts, Mr. Marchand will likely impose fines and President Trump will take a tougher stance, with threats of further consequences and even imprisonment if things continue. That would be even more unusual than this hearing.