Left: Michael Cohen (Yana Paskova/Getty Images); Center: Donald Trump (AP Photo/Rebecca Blackwell); Right: Stormy Daniels (Tara Ziemba_Getty Images)
Ahead of a Thursday debate with President Joe Biden and the scheduled July 11 sentencing on 34 falsification of business records felony convictions, Donald Trump’s defense attorneys have succeeded in lifting parts of an existing gag order that barred the former president from going after hush-money trial witnesses, like Stormy Daniels and Michael Cohen, through “extrajudicial speech” and likewise reined in scattershot criticisms of jurors.
While a partial win for the defense, the Tuesday ruling from Acting New York Supreme Court Justice Juan Merchan did not give the Trump team all that it asked for. Defense attorney Todd Blanche had made the case that the gag order was an “extraordinary, unprecedented, and unwarranted restriction on the constitutionally protected speech of the leading candidate in the 2024 presidential election” and, thus, should be “terminated” in its entirety now that the proceeding is in the post-verdict phase.
Part of Blanche’s argument focused on Trump’s inability to respond to “political attacks” from key hush-money trial witnesses, such as former Trump Organization fixer Michael Cohen and porn star Stormy Daniels.
“As time passed, even the Court began to recognize the increasing absurdity of forbidding President Trump from responding to political attacks during the trial by the government’s star witnesses, Michael Cohen and Stormy Daniels,” Blanche said.
Importantly, though, not even Manhattan DA Alvin Bragg (D) disagreed that the trial witness criticism gag needed to be “enforced” any longer, which Merchan noted in his ruling.
“The Orders were overwhelmingly supported by the record, and it was upon that record that the Appellate Division First Department and the New York Court of Appeals kept the Orders intact,” the judge wrote. “However, circumstances have now changed. The trial portion of these proceedings ended when the verdict was rendered, and the jury was discharged. Therefore, Paragraph (a) is terminated without opposition by the People.”
The paragraphs in the Trump gag order, for reference.
Merchan said it would be his “strong preference to extend […] protections” against verbal attacks on jurors, but he concluded that this part of the gag order also “must be terminated.”
In the judge’s view, however, that’s not the end of the discussion surrounding juror safety.
More Law&Crime coverage: New York’s top court throws out Trump’s challenge of hush-money judge’s gag order
“Nonetheless, there is ample evidence to justify continued concern for the jurors,” Merchan continued. “Therefore, the protections set forth in his Court’s Protective Order of March 7, 2024, Regulating Disclosure of Juror Information will remain in effect until further order of this Court.”
In summary, in terms of paragraphs (a) and (c) in the gag order, Merchan’s ruling constitutes a partial win for the defense.
But the judge still kept in place paragraph (b), writing that lawyers in the DA’s office, court or DA staffers, and family members of staffers, lawyers, the judge and DA Bragg must still be “free from threats, intimidation, harassment, and harm” until Trump is sentenced.
In Bragg’s motion, the DA warned that even if Trump was partially unmuzzled, he should not view that as “carte blanche” to say anything and everything, referencing Trump’s E. Jean Carroll case losses and Georgia election workers’ defamation case against Rudy Giuliani, which he lost by default:
This change of circumstance does not mean that defendant has carte blanche to resume his reprehensible practice of publicly attacking individuals involved in litigation against him. But protections against such attacks will now derive from separate criminal-law protections against harassment or similar misconduct, see, e.g., Penal Law §§ 120.20, 240.26(3), as well as the prospect of civil liability for defamation, intentional infliction of emotional distress, or similar claims, see, e.g., Carroll v. Trump, No. 20-cv-7311 (LAK), 2024 WL 1786366, at *1 (S.D.N.Y. Apr. 25, 2024); Freeman v. Giuliani, No. 21-3354, 2023 WL 9783148, at *1 (D.D.C. Dec. 18, 2023); Carroll v. Trump, No. 22-cv-10016 (LAK), ECF No. 174 (S.D.N.Y. May 9, 2023).
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