Trump's hope of using gag order complaint to stay out of jail buried by legal expert

A former federal prosecutor shrugged off First Amendment concerns over a gag order imposed on Donald Trump in his New York fraud trial.

Judge Arthur Engoron imposed restrictions on what the former president can say about his court staff, and District judge Tanya Chutkan wants to prohibit him from directly targeting court personnel, potential witnesses or the special counsel and his staff, and former prosecutor Shan Wu wrote a column for The Daily Beast knocking down Trump's complaints about these orders.

"In classic Trump-style hyperbole, one of Trump’s lawyers stated regarding the reinstatement of Judge Engoron’s order in the New York cases that it was 'hard to imagine a more unfair process and hard to believe this is happening in America' while complaining that Trump 'may not even comment on why he thinks he cannot get a fair trial,'" wrote Wu, who served as counsel to former attorney general Janet Reno.

"Nothing could be further from the truth than a claim that Trump is undergoing an 'unfair process' because the only process that matters is the one going on inside the courtrooms, not outside the courtroom," Wu added.

Even if the gag orders violates his First Amendment rights to political speech, they have no bearing over what goes on during his trials and will mean nothing on appeal.

"If Trump is convicted, his conviction or convictions will not be reversed on the basis that his First Amendment right to political speech was violated," Wu said. "Whether or not Trump loses the next presidential election has nothing to do with whether he is convicted in any of his cases. That is because Trump is not on trial in any of those cases for anything he is saying outside the courtroom. Normally, such statements can cause a legal problem with a conviction only when they prejudice the defendant’s right to a fair trial due to excessive pre-trial publicity."

The only remedy for a violation of Trump's First Amendment rights is to let him talk more, and Wu said he could do that as a convict or an acquitted man.

"At the end of the day, this is a case that will have very little in the way of constitutional value unless we again have a former president running for re-election while under indictment for 91 criminal counts," Wu said. "No, the real importance of this debate is whether Donald Trump will be treated the same as any other citizen — and any other citizen would not be allowed to threaten, harass, intimidate witnesses or court staff or interfere in any other way with their own criminal trials."