Alina Habba pictured during an appearance on Fox News, May, 9, 2024 (Fox News/screengrab)
In recent days and over the course of Donald Trump’s criminal cases, we’ve heard a lot about concepts like unconstitutional vagueness, but unconstitutional nervousness is a new entry into the lexicon, courtesy of the former president’s lawyer turned legal spokeswoman Alina Habba.
During a Thursday segment on Fox News railing against the hush-money trial gag order as “unconstitutional,” repeating a First Amendment argument on TV that, to date, has not succeeded in any court no matter which Trump case gag we are talking about, Habba next said that her own constitutional rights are being violated.
Habba: As his legal spokeswoman, I am nervous about what I can’t say and that is also unconstitutional. pic.twitter.com/52ITZDmLF2
— Acyn (@Acyn) May 9, 2024
Asked why the prosecution’s star witness Michael Cohen is allowed to say whatever he wants outside of court while Trump remains gagged, Habba answered that the system is rigged and that she herself is a victim of that rigging.
“Because we have a dual system of justice and we have a very unconstitutional gag order. As his legal spokeswoman, I’m nervous about what I can’t say and that’s also unconstitutional. The fact that they will not let a defendant speak and exercise his First Amendment rights — never mind the leading candidate for president — that is un-American, it violates his First Amendment rights,” she said, noting that the defense took another step to appeal this “completely ridiculous order.”
“Hopefully the appellate division will see that it is unconstitutional, as we say it is, and the American people definitely already do,” she added.
Exactly one week ago, Acting New York Supreme Court Justice Juan Merchan clarified that, contrary to the defendant’s statements, nothing in the gag order prevents Trump from testifying in his own defense at trial. Nor is the former president completely muzzled outside of the courtroom, as his statements outside the courthouse and his still-active use of Truth Social shows.
There are limits, however, on what the defendant can say about certain people involved in his New York trial and their family members.
One piece of good news for Habba is that the gag order is not complicated and if there are any questions about what the limits on her speech may be in her capacity as Trump’s legal spokeswoman, the details can be found there.
Trump cannot make public statements about “known or reasonably foreseeable witnesses” and he can’t direct others (like Habba) to do so either. Trump cannot make or direct others to speak about lawyers in the case other than Manhattan DA Alvin Bragg (D), cannot go after the judge’s staff or the DA’s staff, and cannot speak about the “family members of any counsel, staff member, the Court of the District Attorney, if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is likely to result.”
Finally, Trump cannot neither speak about jurors nor direct others to do so.
The judge has threatened “jail may be a necessary punishment” for Trump if he continues violating the gag order, as he has done numerous times.
Still, Merchan has said that is not a path he wants to take.
“Mr. Trump, it’s important to understand that the last thing I want to do is to put you in jail,” the judge said.
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