Judge Merchan’s emotionally deranged and irresponsibly overbroad gag order, issued in two separate installments, the second building off the first, is both dangerous and unprecedented for its sweeping scope. It severely infringes on President Trump’s fundamental rights protected under the First Amendment to speak, and, wherever appropriate, criticize the trial proceeding as he sees fit. It is well-settled law that prior restraints on speech, of which gag orders are the textbook example, are – in the overwhelming majority of cases – unconstitutional as a form of government censorship.
Only in the rarest of cases has the Supreme Court upheld prior restraints on speech. In the few cases where the Court has upheld gag orders, a form of prior restraint, the order was necessary to achieve a compelling state interest. In other words, the Supreme Court has only permitted gag orders that satisfied the extremely high burden of strict scrutiny analysis. Where gag orders are at issue, strict scrutiny compels courts to limit the scope of the order to an articulable set of facts – the facts encompassing the order must be extremely particularized and limited in scope, and only considered as a final option if and when all other alternatives to help ensure a fair trial have been totally exhausted.
Thus, gag orders are only ever to be used as a last resort option, and only in the most exceptional cases when the right to a fair trial would otherwise be severely jeopardized without it. In the rare cases where a gag order would be appropriate, again the court must take great pains to ensure that it is structured in such a way as to be particularized to a highly limited set of facts that have a direct bearing on the integrity of the proceeding – and go no further. The gag order should always be temporary, with a definitive start time and expiration date, terminating whenever the danger that resulted in its issuance in the first place subsides, or immediately once alternative, less constraining methods that would ensure a fair proceeding become available, whichever comes first.
Regrettably, Judge Merchan has run roughshod over those fundamental principles that would otherwise prevent gag orders from unduly violating the speech rights of the defendant, Donald Trump. To reiterate, gag orders are the archetypal example of a prior restraint on speech. The general rule is that prior restraints on speech are presumptively unconstitutional. Courts only uphold them in the rarest of cases where all other options are unavailable to ensure a fair trial, and only after assurances that the order has been narrowly tailored in its scope — and necessary to achieve — a compelling state interest – that is to say, an interest of monumental urgency that would imperil the proceeding without it.
In a criminal proceeding involving a President of the United States, the normal checks that create a presumption against issuance of a gag order should receive heightened scrutiny. Indeed, because of the political notoriety of the defendant, in addition to the well-established list of factors that create a reasonable presumption against Judge Merchan’s trial being anything but fair, the normal strict scrutiny analysis applicable should be counterbalanced by the overriding public interests at play here that strongly disfavor any sort of infringement on speech and press rights whatsoever.
These precautions should even be observed if strict scrutiny analysis would, under normal circumstances, dictate permitting a limited gag order. This is because the case involves the leading presidential candidate, just months before what many pundits believe will be one of the most hotly contested presidential elections in American history, where the stakes of the election could not possibly be higher. Moreover, no fair-minded observer would say that Donald Trump could possibly get a fair trial in lower Manhattan, before a Democratic judge, wherein a jury pool was drawn from a borough of which nearly 90% of residents voted for Joe Biden over Donald Trump in 2020.
Accordingly, based on an objective assessment of all the facts here, if the court is to consider issuing any encroachments on anybody’s First Amendment rights, the operative principle must be that such limitations be subject to the highest possible scrutiny. Normal strict scrutiny analysis should set the floor, and really, the court should be held to a theoretically higher level of scrutiny for imposing any limitations in light of additional factors at play here that make this proceeding extraordinary: 1) the defendant is the frontrunner to be the next president; 2) the public has a strong political interest in the outcome of the case because a criminal conviction would deny tens, if not hundreds, of millions of Americans their voting rights; and 3) the trial itself is already compromised by the myriad conflicts of interest, detailed throughout this article, and the lack of transparency in the process – both of which facially pose serious due process problems.
In a normal criminal trial, typically the defendant receives certain constitutional protections, including an implicit right to anonymity, that mitigate against creating unfair prejudices in the minds of jurors. These guardrails, which are patently missing in President Trump’s case, are of critical importance to preserving the integrity and fairness of a proper criminal proceeding overall.
In a criminal trial especially, courts have traditionally taken great pains to ensure the jury pool does not bring their preconceived biases about the defendant that could prejudicially color the ultimate verdict. Usually if a juror even knows anything about a criminal defendant – good, bad, or indifferent – before the trial, that juror is struck. This is especially true for a highly publicized trial because those preconceived biases are rightly seen as compromising to the defendant’s presumption of innocence. No matter how impartial a juror might insist he or she is, as a practical matter it is virtually impossible to set aside the impressions one might already have about the defendant from one’s judgment about the defendant’s guilt or innocence.
In a case involving Donald Trump, arguably the most famous individual in the world, of which nearly all Americans have an opinion, the baked-in protections that generally help foster a presumption of innocence for ordinary criminal defendants are entirely absent here. The court, in short, cannot pretend to be agnostic to the stark political realities of this case, which necessarily redound to – and are inextricably linked with – the defendant’s identity. There is no possible way to divorce the defendant from the political passions of the jury pool – to pretend otherwise, as Alvin Bragg and Judge Merchan do, poses a grave injustice to both Donald Trump’s rights and to the public interest.
This injustice encompasses President Trump’s tens (if not hundreds) of millions of would-be voters, who are also deeply affected – both politically and emotionally – by this criminal proceeding and have an indispensable interest in its outcome. The public has an overriding interest in this case – and the public interest necessarily entails maximum transparency on part of the court. Furthermore, because cameras are not permitted in Judge Merchan’s courtroom, the judge has an additional responsibility to ensure that both the defendant and the public’s constitutional rights and interests are not anymore unduly limited via issuance of unconstitutional prior constraints like gag orders, or anything of that sort, over the course of the proceeding.
Alas, the public has great cause for concern to believe that Judge Merchan has so far ignored their interest (to say nothing of brazenly ignoring President Trump’s constitutional rights), completely disregarding constitutional considerations of the highest importance in the process. For one, the fact that Merchan issued a first gag order on March 26th, with no stated end date, and with only sporadic citations to law, was bad enough. Even worse, however, was that Merchan went so far as to issue a second order, fewer than one week later, on April 1st, expanding the already overbroad March 26th gag order to also capture any speech by the defendant directed at the family of Judge Merchan or Alvin Bragg, is multiple bridges too far.
Judge Merchan’s second gag order reads like a child throwing a temper tantrum, an emotionally charged rant that somehow manages to insult President Trump, his supporters, and the entire public, in the process. At its most histrionic point, Judge Merchan’s emotively rages “It is no longer just a mere possibility or a reasonable likelihood that there exists a threat to the integrity of the judicial proceedings. The threat is very real. Admonitions are not enough, nor is reliance on self-restraint. The average observer, must now, after hearing Defendant’s recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well.” [Emphasis in the original.]
Judge Merchan’s theatrical diatribe – notably heavy on emotion, light on substance – was so clearly issued as a desperate, last-ditch act to prevent President Trump from exposing the very grave conflicts of interest implicating the judge and his immediate family members, including Merchan’s own daughter and wife, that make virtually impossible a fair trial from the start.
Judge Merchan is a known Democratic donor. For years, he has been a serial contributor to Democratic politicians, including, as recently as 2020, a direct contributor to Joe Biden, Donald Trump’s likely opponent in the 2020 general election. He has also made contributions through various political action committees that support Democratic politicians in general. Maybe even more damning, Judge Merchan’s daughter, Loren, serves as President of a political advocacy group, Authentic, whose clients include none other than the Biden-Harris campaign, Adam Schiff, Kathy Hochul, Gavin Newsom, Ilhan Omar, and many other high-profile, far left progressive Democratic politicians. Finally, Judge Merchan’s own wife reportedly works directly for New York State Attorney General Letitia James, who made the central point of her campaign for AG to “get” Donald Trump. Of course, when she was on the campaign trail James could not cite any legitimate legal rationale to “get” her biggest political adversary in Trump, other than being obviously driven by envy and spite, the ugly sentiments that seem to animate her entire career in public office.
Judge Merchan’s claim that issuance of the gag order was necessary to prevent “attacks” on his family are utterly groundless. President Trump never “attacked” Judge Merchan or any of his relatives. The definition of attack is to take “an aggressive and violent action against a person or place.” Under the law, attacks are equivalent to threats. In First Amendment jurisprudence, under the well-settled precedent from Brandenburg v. Ohio (1969), speech may be prohibited only if it is (1) “directed at inciting or producing imminent lawless action,” and (2) such speech is “likely to incite or produce such action.” The classic example: a party that raises his fist and says, “I’m going to punch you in the nose” will likely have engaged in punishable speech under Brandenburg; a party that says, “I am going to punch you in the nose the next time I see you,” has not.
A party that says, “You should be recused because your daughter has, as a client to her firm, the man I am going to likely face in the upcoming presidential election,” is neither inciting nor threatening nor imminent nor lawless. That is constitutionally protected speech under the First Amendment; not an “attack,” as Judge Merchan complains, and surely, not grounds for a gag order – which, here, applying this analysis, renders it as an unconstitutional prior restraint on speech.
Even if President Trump had called upon his supporters – which, let me be emphatically clear, he never did nor would do – to verbally harass Loren Merchan, Judge Merchan’s daughter, via a phone call or letter or email-writing campaign, that speech would still pass muster as constitutionally protected under a faithful application of the Brandenburg precedent, which establishes the rule for lawfully prohibiting speech. What President Trump did, via his Truth Social platform, comes nowhere close to even the latter hypothetical. Thus, the Judge’s knee jerk reaction to impede the President’s First Amendment right to criticize the unfairness of his trial, and point out what many legal commentators, experienced political experts, and observers have called a judicially disqualifying conflict of interest – under both New York’s Rules Governing Judicial Conflict as well as the ABA’s Model Rules of Professional Conduct – flagrantly violates the Constitution, makes a mockery of the rule of law, and should not stand.
Under no circumstances should this trial be allowed to carry on without, at the bare, bare minimum, Judge Merchan’s recusal. President Trump’s lawyers have every right in the world to call for a mistrial. Any court worth its salt – and committed to the Constitution – would grant a mistrial without second thought because there is no possible way President Trump’s fundamental rights can be preserved, as a criminal defendant, in Judge Merchan’s proceeding, where conflicts, venue, and grievous First Amendment rights violations, in addition to a litany of other factors, have already prejudiced this trial beyond repair.