Now that Donald Trump’s trial has ended in conviction — on 34 counts of falsifying documents to hide hush money payments intended to interfere with the 2016 election — the former president is clamoring to get back on the attack. On Tuesday, Trump’s lawyers informed Judge Juan Merchan that they and their client wished his gag order against Trump to be lifted. For the sake of protecting the administration of justice, Merchan should not go along with their request.
During and after the trial, Trump has bashed Merchan, Manhattan District Attorney Alvin Bragg and even President Joe Biden for what he called a “rigged” trial. But the gag order has muzzled Trump from attacking everyone, restricting him from public statements about trial witnesses, jurors and the other prosecutors and court staff as well as their families.
Unsurprisingly, Trump could not help but violate the gag order repeatedly.
Merchan imposed the gag order to protect the due administration of justice over Trump’s vehement opposition. He found Trump’s history of dangerous rhetoric against jurors, witnesses and others to be a “very real” threat against the trial’s integrity and a “direct attack on the Rule of Law itself.”
Unsurprisingly, Trump could not help but violate the gag order repeatedly. Merchan held him in criminal contempt for willfully disobeying the order 10 times. The court imposed 10 $1,000 fines (the maximum allowed, but which Trump could easily afford) and warned Trump that incarceration was the likely next step if the violations continued.
The threat of jail time successfully deterred Trump, at least directly. Political cronies (by their own admission) traveled in from around the country to circumvent the order and say what Trump was barred from saying. Though the gag order also prohibited Trump from directing others to violate it, the DA’s office wisely chose to focus on completing the trial rather than ask for another contempt finding. And in any case, for once in his life Trump was blessedly muted.
Trump’s attorneys claim that the gag order has served its purpose, and with the trial over there is no need to bar him from verbally assailing witnesses, assistant prosecutors, court staff or their families. In response, prosecutors pointed out that the verdict is not the end of the case; sentencing and post-trial motions remain, as does the need to protect the judicial process. In a case this high-profile, juror safety is still of paramount importance long after a verdict. It would be perverse if jurors were now targeted as a result of their public service. It would also compromise the ability to seat jurors in the three other criminal cases against Trump that remain pending.
Additionally, after the verdict, Trump’s lawyers immediately vowed to appeal the conviction. That creates the possibility — albeit an unlikely one — that the case will need to be retried. As long as that possibility exists, the safety of the witnesses, prosecutors, staff and their families must be protected. (The presumptive Republican nominee also urged the U.S. Supreme Court to rescue him from his state court conviction, even though there is no legal basis for it to act before the New York courts have reviewed Trump’s petition.) Despite the gag order, Trump has increased his thinly veiled incitements to violence after the verdict. Trump’s legal team should be focusing its attention on that appeal, as well as his sentencing on July 11. But Trump may well instead have demanded his lawyers do something about the gag order so he can get back to what he enjoys most: lashing out against his enemies and playing the victim for his fan base, without any limitation. Despite the gag order, Trump has increased his thinly veiled incitements to violence after the verdict, saying he expects his supporters may reach a breaking point if he is sentenced to prison or house arrest. Imagine what he would do if the order were lifted. Many of his supporters have left no doubt as to their wishes, with some calling for attacks on jurors, executing Merchan and civil war. Fortunately we have not seen any violence in the week since the verdict, but that does not mean the threat is not real. And it certainly does not mean that Trump should be given free rein to go on the offensive. Unleashing Trump might allow him to push his most violence-prone supporters over the edge. Merchan’s gag order struck an appropriate balance between ensuring the First Amendment rights of a candidate seeking office and the need to protect the integrity of the court proceedings. Although the trial has concluded, the wider proceedings continue, as does the need to protect them. Perhaps if Trump had not created the need for the gag order in the first place, then repeatedly violated it, his request would be more reasonable. But there is no need to accommodate a vindictive man who has shown he is willing to break the law as eagerly as he disregards the truth.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Andrew Warren
Andrew Warren is senior counsel at Democracy Defenders Action. He previously was a prosecutor with the U.S. Justice Department and the elected district attorney in Tampa, Florida. 
