Supreme Court Would Look 'Harshly' at Donald Trump Gag Order: Legal Analyst

Legal analyst Jonathan Turley, appearing on Fox News Sunday, said the U.S. Supreme Court would look "harshly" at the recent gag order imposed on former President Donald Trump by Judge Juan Merchan.

After earlier stating that Merchan's order had "major constitutional problems," Turley was asked by host Shannon Bream, "What if it [the gag order] goes to SCOTUS?"

"I think SCOTUS would look harshly at this order as it's currently written. If you want to try the leading presidential candidate right before the presidential election, you have to have some recognition that there's a political speech element here, which is paramount. And I don't think the judge recognized that with this order," Turley, an attorney and professor at the George Washington University Law School, responded.

The Context:

The former president has been accused of allegedly falsifying business records relating to hush-money payments to adult film star Stormy Daniels during his 2016 presidential campaign in a case brought on by Manhattan District Attorney Alvin Bragg. Trump, who is the presumed 2024 GOP presidential nominee, has pleaded not guilty to all charges and claims the case is politically motivated against him. Daniels has alleged that she had an affair with Trump in 2006, which he has denied.

Merchan, who is presiding over the criminal trial, imposed a gag order on Trump on Tuesday, barring him from making public statements about those involved in the case, excluding himself and Bragg. Trump's former lawyer, Michael Cohen, who is set to testify in the trial, and Daniels are protected under the order.

However, the gag order did not include the families of Merchan or Bragg, and Trump has exploited the loophole numerous times on social media this past week.

What We Know:

Bragg's office on Thursday sent Merchan a letter asking him to "clarify or confirm" who the order protects specifically and to "direct that defendant immediately desist from attacks on family members." The gag order was issued shortly after Trump attacked Merchan's daughter, Loren, on social media, something that he repeated one day later.

"The People believe that the March 26 Order is properly read to protect family members of the Court," the letter from Bragg's office states. "This Court should now clarify or confirm that the Order protects family members of the Court, the District Attorney, and all other individuals mentioned in the Order. Such protection is amply warranted."

Trump lawyer Todd Blanche responded with a letter of his own on Friday, opposing the request and arguing that the court cannot "direct" Trump to refrain from attacking Bragg, Merchan or their family members because the gag order does not include any such restrictions.

Views:

Turley, who says he believes gag orders often "run afoul" of free speech, took aim at Merchan's order, specifically, because he says it allows Cohen to publicly speak out against the former president while hindering Trump's ability to criticize his former fixer and attorney.

"It creates this perversity. You have people like Michael Cohen, who's going on the news every night attacking Trump, arguing against his election, but Trump can't criticize Michael Cohen or Stormy Daniels or the lead prosecutor," Turley said Sunday. "This election is going to turn, in significant part, on the weaponization of the legal system. And Trump is winning on that narrative. These judges are essentially gagging a presidential candidate on one of the chief issues of the presidential election."

Cohen told MSNBC's Joy Reid on Friday night that the former president has a "goal" when attacking judges in the cases against him.

When Reid asked Cohen on her show The ReidOut what Trump is attempting to accomplish when attacking judges, he responded: "His goal is to fuel up his supporters...for the sole purpose of getting them to act, no differently and as stupidly as they did on January 6."

Cohen continued: "His goal is to get them to attack these individuals, these critics of him as often and as frequently as they possibly can. Whether it's going to be on social media, whether it will be through phone calls, whether it will be in person. That's his goal—it's witness intimidation and it's harassment."

Steven Cheung, Trump campaign communications director, told Newsweek via email on Saturday morning: "Michael Cohen is a convicted, repeated perjurer and compulsive liar. Nothing he says can be taken as anything other than fiction.

"Just yesterday a federal judge refused to reduce his supervised release sentence because he continues to lie and cheat the system, including lying on the stand in the NYAG case and his A.I.-generated legal brief. No ethical prosecutor or judge can use Cohen's testimony in any case."

Cohen served prison time after pleading guilty to eight criminal counts, including campaign finance violations related to the alleged hush money scheme involving Daniels.

What's Next?

Despite the hush money case being viewed by many experts as the least consequential and damning of Trump's criminal cases, it now appears that it will be the first one to go to trial, with a start currently set for Monday, April 15.

Update: 3/31/24, 10:41 a.m.: This story has been updated with additional information.

Update: 3/31/24, 11:31 a.m.: This story has been updated with additional information.