(Photo by Win McNamee/Getty Images)
As Michael Cohen’s testimony grinds on for a second day in Manhattan, Donald Trump will have to keep his mouth shut about his former fixer just a little bit longer. This morning, the New York Supreme Court’s Appellate Division affirmed the validity of the gag order imposed by Justice Juan Merchan, which bars the defendant from attacking the witnesses, jurors, court staff, and line prosecutors.
It’s a tall order, and one that Trump has managed to violate ten times already. He also managed to get the gag order expanded after having to be told explicitly that attacking the judge’s daughter was not appropriate. Since being pointedly reminded that Judiciary Law § 751 presents the court with just two options for punishment — a fine of $1,000 and incarceration — Trump seems to have gotten religion and kept his mouth shut. But he’s still out there whining that the order violates the First Amendment and will be overturned imminently.
Toward that end, his lawyers filed an emergency appeal on April 8 in which he demanded a stay of the April 15 trial date, arguing that “The Unconstitutional features of the gag order are causing ongoing, irreparable harm to Petitioner and the voting public under the New York and U.S. Constitutions.” That didn’t happen, and now the First Judicial Department has dropkicked Trump’s appeal of the order.
Justice Merchan effectively bulletproofed his order by modeling it on the one crafted by the DC Circuit in Trump’s election interference case. He didn’t have to re-invent the wheel when a federal court had already concluded that “Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process.”
And neither did the appellate panel, which simply quoted from the per curiam ruling and noted that “This Court adopts the reasoning in the circuit court’s Federal Restraining Order Decision.”
Of 30 entries on the appellate docket, only two are unsealed. But it seems pretty clear that Trump simply reiterated the arguments he made at the trial court, where he insisted that his First Amendment right as a political candidate outweighed the court’s need to protect the integrity of the proceeding and safety of parties to it.
Notably, petitioner does not argue that the Restraining Order has impinged upon his Sixth Amendment rights, or that he is unable to receive a fair trial because of the Restraining Order. Instead, he argues that the restriction of his statements relating to any real or perceived impropriety posed by [a line prosecutor’s] and [the judge’s daughter’s] actions and employment history restrict his ability to engage in protected political speech and may have some adverse impact on his campaign.
The appeals court failed to credit Trump’s math, although that hasn’t stopped Trump’s surrogates from saying the things he can’t. Here’s House Speaker Mike Johnson, who made the pilgrimage to New York to kiss the ring today, whining about the unfairness of the ban on attacking the judge’s daughter.
Mike Johnson, an actual lawyer, purports to be outraged that the judge won’t allow politicians to hold press conferences inside the courthouse. Of course, Mike Johnson purports to be so wholly devoted to sexual purity that he allows his son to monitor his browsing with a no-fap app, and yet there he is, prostrating himself before a man accused of fornicating with a sex worker and paying for her silence, so … YMMV.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
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May 15, 2024 at 12:45AM
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Donald Trump: Still Gagged - Above the Law
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