Donald Trump seems to be begging for a gag order as he faces prosecution in two jurisdictions, but so far prosecutors and judges haven't taken the bait.
The twice-impeached, twice-indicted former president has publicly slurred special counsel Jack Smith as "deranged" and said he "looks like a crackhead," and he has frequently commented on the various investigations into his alleged crimes in ways that might get any other defendant slapped with a court order, but his 2024 candidacy complicates matters, reported the Washington Post.
“In some ways, these comments are much more serious than if, say, a typical bank fraud defendant made them, because that person may have 500 followers and it won’t have much of an impact,” said former federal prosecutor Randall Eliason, who now teaches law at George Washington University. "But Jan. 6 shows his followers can see his posts as a call to action. I think it’s complicated for free speech reasons, but this is getting pretty close to the line.”
So far prosecutors have not lodged any complaints with U.S. District Court judge Aileen Cannon about Trump's comments, even though some of his statements seem worthy of a gag order, and both Smith and the judge have reasons to avoid raising the issue.
“Trump is likely trying to provoke a legal battle so he can portray himself as a victim of censorship as well as government abuse,” said former federal prosecutor Ken White. “He wants that to be the narrative, to fundraise and make himself the victim. Smart judges avoid unnecessary fights and don’t want to be trolled.”
Trump confidant Roger Stone was ordered to stop commenting publicly on his own prosecution in 2019 after a judge determined that his "middle-school behavior" might influence jurors, but Trump's re-election bid probably gives him more latitude than others would be granted.
“The judge will just have to suffer Trump’s comments and shrug them off and not get engaged in any kind of tussle which would then lead actually to greater publicity for Trump, and Trump would actually thrive on it," said Bruce Rogow, who represented Stone in the 2019 case. "I think Trump would welcome a gag order, but I don’t think Judge Cannon would take the bait.”
But that might change if the ex-president starts talking about witnesses or evidence in the case, especially evidence that Cannon rules as inadmissible at trial.
“What the courts are mainly concerned about, and the prosecution would be concerned about, is if Trump were to make factual statements, whether or not true, that could influence the jury’s verdict — but that’s not what he’s doing here,” said Stephen Gillers, a professor of legal ethics at New York University. “He’s attacking the prosecutor in rather harsh terms but he’s not revealing information that would be excluded from trial.”
