Apr 23, 2024 - Politics & Policy

Trump again tempts his fate on New York gag order

Photo illustration of Donald Trump speaking with one finger raised repeating into infinity

Photo Illustration: Natalie Peeples/Axios. Photo: Joe Raedle/Getty Images

NEW YORK — Less than 24 hours before this morning's hearing over whether former President Trump has violated the gag order in his criminal case here, he tempted fate again Monday by assailing a key witness — his former lawyer and fixer, Michael Cohen.

Why it matters: Trump repeatedly has tested the limits of the court order barring him from commenting on witnesses, prosecutors, court staff and jurors — sometimes appearing to search for loopholes in the order by quoting supporters' criticisms.

  • Other times, like Monday, he's seemed to barge right through the order, risking fines and even possible jail time to air his grievances about the case, the people involved, and the gag order itself
  • "When are they going to look at all the lies that Cohen did in the last trial?" Trump said outside the courtroom in one of his more specific rants, apparently referring to Cohen's prior convictions.

Driving the news: Trump's dance with the gag order takes a significant turn today, when Judge Juan Merchan puts Trump's trial on hold for a couple of hours to hear prosecutors' request to hold the ex-president in contempt for violating the order.

  • For weeks, Trump essentially has dared Merchan to do just that, saying the gag order was hurting his presidential campaign and his ability to defend himself. The threat of being punished by the court hasn't seemed to matter.
  • Prosecutors last week accused Trump of violating the gag order seven times.
  • Merchan, who is overseeing the criminal trial, could fine Trump for each violation of the gag order.

Zoom in: Monday's jabs at Cohen followed a week in which Trump largely relied on quoting others in an apparent effort to circumvent the gag order.

  • Last week, he stood in front of cameras outside the courtroom and leafed through printouts of articles by conservative writers criticizing the case.
  • On Truth Social, Trump posted about University of California law professor John Yoo telling Fox News about the difficulty of finding impartial jurors for Trump's trial. Trump has argued that he can't get a fair trial in New York.
  • "Law Professor John Yoo: 'It's pretty extraordinary...half of the jury pool already says that they're so biased against President Trump that they can't serve on the jury,' " Trump posted.

Trump also quoted Fox News host Jesse Watters in a post: "They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury."

  • There's no evidence for that claim.

What they're saying: Some legal analysts think Merchan will treat such antics as if Trump had delivered the criticisms himself.

  • "My expectation is the judge will say that [quoting somebody else is] not permitted under the gag order because it would render the gag order a nullity if he just said, 'I'm quoting somebody else,' " Joshua Naftalis, a former federal prosecutor in New York, told Axios.
  • "It's Trump speaking, whether or not he's technically quoting somebody else."
  • "The idea of a contempt proceeding is to get the alleged offending party to comply with the order," Michael Scotto, a New York lawyer and former chief of the Manhattan DA's racket bureau, told Axios.
  • "The question in my mind is: Is there any penalty that the judge might give that would dissuade Mr. Trump from not speaking his mind?"

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