A New York judge is expected to hear arguments Tuesday over whether former President Trump violated a gag order imposed against him in his hush money case.
Prosecutors with the Manhattan District Attorney’s Office claim Trump has so far violated the order barring him from attacking witnesses, prosecutors, court staff and the judge’s family 10 times.
They’ve asked Judge Juan Merchan to fine the former president $1,000 for each violating post and to remind him that he could be jailed if he continues to skirt the order. They’ve also asked the judge to hold him in contempt.
“The defendant is aware of the April 1 order,” Assistant District Attorney Chris Conroy said last week. “We know that from various posts he had made.”
The purported violations were mainly posted to Trump’s Truth Social, where he has made comments about potential witnesses in recent days. The gag order does not prevent Trump from attacking the judge or Manhattan District Attorney Alvin Bragg (D).
One post, made April 10, thanked an ex-lawyer to porn actress Stormy Daniels for “revealing the truth about two sleazebags who have, with their lies and misrepresentations, cost our Country dearly.”
The “sleazebags” in question were Daniels and Trump’s ex-fixer and personal attorney, Michael Cohen — both expected to be prominent witnesses in the district attorney’s case.
Another post maligns Cohen as a “disgraced attorney and felon … prosecuted for lying” and suggested that an ex-Manhattan prosecutor who once oversaw the investigation into Trump, Mark Pomerantz, should be “prosecuted for his terrible acts in and out of the D.A.’s office.”
Trump has vocally opposed the gag, describing it as more proof the cards are unfairly stacked against him in his first criminal trial.
“The gag order has to come off,” Trump told reporters Friday. “People are allowed to speak about me, and I have a gag order, just to show you how much more unfair it is.”
“They’ve taken away my constitutional rights to speak,” he added, though he has spoken to reporters in the courthouse daily since the trial began.
Trump has appealed the gag order, arguing it is an unconstitutional violation of his First Amendment rights, but it remains in effect as of now.
But his lawyers have pushed back forcefully on prosecutors’ claims that Trump’s posts violated the gag at all.
Attorney Emil Bove claimed the posts cited “do not establish any willful violations” and pointed to attacks by Cohen as proof Trump’s comments were related to his campaign. A consistent critic of Trump, Cohen has shared or reshared posts deriding the former president in recent days.
Possible consequences of gag order violations
If Trump is found in violation of the order, Merchan could order him to pay the fine or spend 30 days in jail per incident, under New York state law.
The judge could seek to find a compromise that would prevent jail time for Trump so early in the case, Obama White House ethics lawyer Norm Eisen and four other experts argued in a blog post for Just Security.
“We expect the court to impose fines against Trump for a substantial number of the violations and to warn him that future violations will result in additional fines and potentially jail time,” they wrote. “The most difficult question to answer, however, is whether any finding of contempt and resulting punishment will deter this particular defendant from future violations. Prior history suggests it may.”
Trump’s attorneys also pushed back on the idea that reposts of other individuals’ public comments qualify as a violation of the order. Five of the alleged violations involved Trump or his campaign reposting a New York Post opinion article that slammed Cohen as a “serial perjurer,” and two other potential violations involved resharing other media.
“The judge would be on firm legal footing to sanction Trump for all of the statements, but in an abundance of caution, may distinguish some of the repostings for the sake of taking a balanced approach and an incremental one,” Eisen and the other experts wrote in the blog post.
Gag orders in other Trump cases
Merchan’s gag order on Trump is not the first the former president has faced as he’s navigated several civil and criminal trials.
In Trump’s New York civil fraud trial, the judge also imposed a gag order that blocked Trump from making public remarks about court staff. He faces a gag order barring him from attacking key witnesses or prosecutors, minus special counsel Jack Smith, in his federal election interference case, too.
The former president racked up $15,000 in fines for skirting the fraud trial judge’s directive, and when Trump was asked to take the stand to explain himself, the judge determined that his testimony rang “hollow and untrue.”
Trump faces 34 counts of falsifying business records in his New York criminal trial, which centers on a hush money deal made with Daniels ahead of the 2016 election to conceal an alleged affair. Trump has pleaded not guilty and denied the affair.
On Monday, prosecutors told the jury that the deal with Daniels was one part of a broader scheme to squash bad press about Trump ahead of the 2016 election. Defense attorneys argued that hush money alone isn’t illegal and suggested Trump’s arrangements were no different than the average nondisclosure agreement.
David Pecker — ex-CEO of American Media, the tabloid company that allegedly helped Trump put off unflattering coverage — was called as the district attorney’s first witness Monday. After the gag order hearing Tuesday, his testimony is expected to resume.