Analysis: Potential Legal Consequences of Trump's Defiance of Gag Order
Explore the possible repercussions of Trump's defiance of a gag order as legal expert Norm Eisen delves into New York law and the contentious statements in question. Understand the risks and implications of Trump's actions in the face of potential sanctions.
Norman Eisen, a CNN legal analyst and editor of "Trying Trump: A Guide to His First Election Interference Criminal Trial," provided insight into Monday's opening of former President Donald Trump's criminal trial. As counsel to the House Judiciary Committee during Trump's first impeachment, Eisen shared his own views in this commentary. To read more opinions, visit CNN.
During the trial's opening, what stood out the most was the contrast between the ordinary and the extraordinary. The judge and jury carried out their usual procedures, which I have witnessed countless times before. However, this time, they were presiding over a former president facing criminal charges for the first time in history.
Norm Eisen
Norm Eisen
Tuesday morning will be a unique experience for me as a criminal law practitioner of thirty years. At 9:30 a.m., Justice Juan Merchan will address the prosecution's plea to hold Trump in contempt of court and penalize him for allegedly violating the gag order 10 times. Seven of these violations occurred after Trump was informed of the gag order hearing and were included in the proceedings. There may also be mention of an 11th incident that took place after court on Monday, which could be brought up for consideration, though not formally penalized.
Based on my legal analysis of the relevant New York law and the 10 statements at issue, I believe Merchan will likely sanction some of the misconduct. (This essay is based on arguments from that analysis.) The gag order prohibits Trump from making or telling others to make public statements about witnesses, the prosecution’s legal team and staff (except District Attorney Alvin Bragg), jurors, court staff, or the families of court or prosecutorial staff.
The prosecution points to Trump’s April 10 Truth Social post mentioning Stormy Daniels, who he allegedly paid hush money to, and his former lawyer Michael Cohen, who helped with the payments. In the post, Trump called them “two sleaze bags who have, with their lies and misrepresentations, cost our Country dearly!” Another Truth Social post just three days later targeted Cohen, saying, “Has disgraced attorney and felon Michael Cohen been prosecuted for LYING? Only TRUMP people get prosecuted by this Judge and these thugs! A dark day for our Country.”
Donald Trump and Michael Cohen
Donald Trump and Michael Cohen
Getty Images
Related article
The hearing over the gag order is happening during the ongoing feud between Donald Trump and Michael Cohen. The prosecution is requesting Merchan to hold Trump in contempt for making certain statements, along with eight others. They are also seeking sanctions, such as a $1,000 fine for each statement. Additionally, Trump could face up to 30 days in jail for any future violations.
Trump will likely raise various defenses, but one that stands out is his claim that his posts are not threatening, but rather a form of self-defense against attacks that affect his campaign. As a prominent presidential candidate, he will argue that exercising his First Amendment right allows him to respond to such criticism.
His lawyer, Emil Bove, has already presented this argument in court. Bove stated that Trump’s posts directed at Cohen are political in nature and serve to counter statements made by Cohen regarding the campaign. Bove further emphasized that since the gag order does not prohibit Trump from addressing political criticisms, his actions do not violate the court's ruling.
Trump's right to political speech is protected by the First Amendment, which is why the restrictions in the gag order are specific. However, in a criminal proceeding, this right is not absolute. The Court found that Trump's history of attacking his perceived enemies poses a threat to the safety of witnesses and jurors, jeopardizing the trial's integrity. Therefore, these restrictions are necessary by law.
Furthermore, the comments in question are related to the trial and not to Trump's presidential campaign in any way.
Get Our Free Weekly Newsletter
Sign up for CNN Opinion’s newsletter
Join us on Twitter and Facebook
Merchan has shown that he is a fair and considerate judge who likes to find solutions that work for everyone. I believe his decision will show the struggle between different viewpoints, as seen in the case of candidate-defendant Trump. It is possible that the judge will decide to impose sanctions on some of Trump's statements, but not all.
For instance, he could mention that when Trump directly quotes others without making any changes, as seen in some of his posts, it may not be considered a clear violation of the rule - but then emphasize strongly that it should not occur again.
In regards to other social media posts, Merchan is likely to take strict actions, such as imposing fines and issuing warnings of further repercussions, including possible confinement if Trump continues the behavior. This would be even more remarkable than what transpired during this hearing.
Editor's P/S:
The opening of Donald Trump's criminal trial marks an unprecedented event in American history. The contrast between the ordinary proceedings and the extraordinary charges against a former president highlights the gravity of the situation. Norman Eisen, a legal expert involved in Trump's first impeachment, provides insights into the upcoming contempt hearing, where Trump faces potential sanctions for violating a gag order. Eisen analyzes the prosecution's arguments and Trump's defenses, emphasizing the tension between First Amendment rights and the need to protect witnesses and the integrity of the trial.
The trial raises important questions about the role of free speech in criminal proceedings and the limits of political discourse. While Trump claims his statements are protected by the First Amendment, the court has deemed restrictions necessary to ensure the safety of those involved in the trial. Eisen predicts that Judge Merchan will likely impose some sanctions on Trump, striking a balance between competing interests. This case will undoubtedly set a precedent for future trials involving public figures, further shaping the intersection of law and politics in American society.
