(Bloomberg) -- Donald Trump went on a social media tear leading up to his indictment this week, attacking the hush money probe he’s charged in and Manhattan District Attorney Alvin Bragg, warning of “death & destruction” and issuing a call to action: “PROTEST, TAKE OUR NATION BACK!”
It’s the kind of bombastic language the former president is known for online and on the campaign trail. But it’s also the type of inflammatory rhetoric and case-specific commentary that has landed defendants and their lawyers — including some of Trump’s associates — in trouble with judges.
Whether Trump could face an order restricting what he says about the Manhattan case or in any future federal or state prosecution isn’t clear. Lawyers who have dealt with court-imposed limits on speech, often referred to as gag orders, say the former president should be wary of giving judges cause for concern. But the experts also warn that courts are entering complicated First Amendment territory given Trump’s status as a presidential candidate.
“If Trump basically is trying to foment a riot, then I could see the court putting some limitations on him,” said Bruce Rogow, a former defense attorney for longtime Trump adviser Roger Stone, who was barred from posting on social media leading up to his 2019 trial. “If there’s a threat to the administration of justice, a threat to safety, then I think the court could impose gag orders.”
It didn’t take long for Trump to lash out at the judge assigned to the case in a post Friday morning on his Truth Social platform: “The Judge “assigned” to my Witch Hunt Case, a “Case” that has NEVER BEEN CHARGED BEFORE, HATES ME,” he wrote, referring to acting New York Supreme Court Justice Juan Merchan, who also presided over the case against Trump’s former chief financial officer Allen Weisselberg, who is currently in jail after pleading guilty to tax fraud charges last year.
Trump’s recent online vitriol included a since-deleted image showing a photo of the former president wielding a baseball bat next to a photo of Bragg. Trump attorney Joe Tacopina blamed the “ill-advised” post on one of Trump’s “social media people” during an appearance on “Meet the Press.”
His bombast already has had consequences in court. A federal judge in New York ruled that a trial set for next month in a civil case against Trump would involve a rare anonymous jury, since Trump’s comments had been “perceived by some as incitement to violence.”
Court-imposed restrictions on speech are supposed to be rare. The US Supreme Court has broadly held that courts cannot stop reporters from publishing information about criminal cases. But judges have more leeway to restrict what lawyers and defendants say, citing the need to ensure a fair trial and to avoid tainting the pool of potential jurors.
Katie Townsend, deputy executive director and legal director of the Reporters Committee for Freedom of the Press, said it’s more common for judges to impose these types of orders on lawyers than defendants. Pretrial publicity alone isn’t a reason to bar people from talking, she said, noting the countless examples of high-profile cases where judges were able to seat juries. Any speech restrictions are supposed to be “narrowly tailored” to honor First Amendment rights, she said.
If a judge did decide to limit what Trump, his attorneys, and prosecutors can say about a pending criminal case, Townsend said she’d expect that order to cover specific pieces of information. Judges have been reversed for casting too wide a net, she said – for instance, issuing orders that cover potential witnesses and victims as well as lawyers and defendants.
“It can’t be more broad than necessary,” she said. “You’re just restricting lots and lots of speech about a matter of public concern.”
A gag order carries high stakes beyond speech rights — a violation risks being held in contempt of court.
Trump only has to look to his inner circle to find examples of defendants whose post-indictment activities earned judicial rebukes and repercussions.
After Roger Stone was charged with lying to Congress, a federal judge in Washington initially allowed the Republican political operative to talk about his case. But after Stone repeatedly got into trouble for what he was saying – particularly an image posted on his Instagram account of the judge’s photo with a crosshairs symbol – she finally prohibited him from posting on multiple online platforms.
The judge expressed concern at the time that Stone was sharing content that could “incite others who may feel less constrained.”
Rogow said he thought judges would be sensitive to any Trump comments that might put court personnel, jurors or prosecutors in danger given the Jan. 6, 2021, attack on the US Capitol. That day, thousands of Trump supporters descended on the Capitol, many of whom said they were inspired by Trump’s rhetoric.
If Trump “said something that was viewed as encouraging some either violent action or removal from office or some harm to the prosecution, I could see a court taking steps,” he said.
A jury found Stone guilty of lying to Congress in connection with an investigation into Russian interference in the 2016 election. Trump later pardoned him. Another Trump pardon recipient, Paul Manafort, and former 2016 campaign aide Rick Gates faced scrutiny from a judge about their compliance with an order not to speak publicly about their case, though they didn’t face punishment.
There are also examples of speech restrictions in cases before the New York Supreme Court, where Trump is charged. One of Trump’s lawyers, Ron Fischetti, was once at the center of a gag order fight. In a 2007 decision, a New York state appeals court upheld an order limiting what Fischetti could say about a case he was handling, explaining that “reasonable limitations may be placed on speech where an important countervailing interest is being served.” Fischetti, who isn’t representing Trump in the latest criminal case, but has represented him in other matters in recent years, didn’t return a request for comment.
In 2020, a judge ordered lawyers for Harvey Weinstein not to speak with the press about his sexual assault case until the trial was over after his attorney Donna Rotunno published an op-ed about the proceedings.
Rotunno said that in her experience, gag orders are less common in state courts. Still, Trump’s propensity for speaking freely would present challenges for his lawyers with or without judicial intervention, she said. Anything he says can be used by the government against him, she noted. And if there is an order limiting pretrial commentary, his lawyers would have to “heavily” vet anything he wanted to post.
“It would be very interesting to try to gag somebody who is running for president of the United States,” she said.
(Updates with Trump attacking judge on Truth Social in fifth paragraph)
©2023 Bloomberg L.P.