Legal experts say gag order in Trump case is 'untethered' to 'rationale' after court order

John Gotti, Lucky Luciano 'weren’t silenced the way former President Trump was,' expert says

Brianna Herlihy / FOX News 

A New York appeals court on Tuesday kept in place a gag order on former President Trump, who asked the court to lift the ban on his speech after the recent guilty verdict in his unprecedented criminal trial. 

Now that the trial has concluded and the former president and presumptive GOP nominee in the 2024 presidential election awaits sentencing next month, experts say the gag order, which Judge Juan Merhcan has refused to lift, is "untethered from any compelling rationale."

"You have a local New York judge effectively limiting what the leading presidential candidate can say in the months leading up to an election," Jonathan Turley, practicing defense attorney and law professor, told Fox News Digital.

"The continuation of the gag order seems untethered from any compelling rationale, particularly in light of the election," he said.

 

Turley noted that appellate courts are generally "highly deferential" to courtroom management-type issues like the imposition and continuation of gag orders, but he said it is "deeply concerning that Judge Merchan would continue a gag order long after the verdict has been reached and the jury dismissed the case."

"Putting aside the questionable value of the continuation of the gag order, in this case, Judge Merchan is ignoring the countervailing cost for the political system," Turley added.

The New York Court of Appeals on Tuesday rejected Trump’s bid to have the gag order against him lifted, citing that "no substantial constitutional question is directly involved." 

Trump's lawyers cited the November presidential election and the first debate against President Biden later this month, as well as the First Amendment rights of the former president and his supporters, as reasons for the order to be lifted.

The former president was found guilty on all 34 counts of falsifying business records in the first degree last week. The six-week trial stemmed from charges brought by Manhattan District Attorney Alvin Bragg. Trump will be sentenced on July 11, just days before the Republican National Convention.

Merchan imposed the gag order on Trump before the trial began, barring Trump from making or directing others to make public statements about witnesses with regard to their potential participation or about counsel in the case – other than Bragg – or about court staff, DA staff or family members of staff.

John Shu, a constitutional attorney who served in both Bush administrations, noted that some of New York's highest-profile defendants were not subject to such a gag order as the 45th president.

"The Manhattan DA’s office has charged all kinds of high-profile criminal defendants throughout its history, ranging from celebrities to gangsters, such as Lucky Luciano, the head of La Commissione, and they weren’t silenced the way former President Trump was," said Shu.

"Neither was John Gotti, the former head of the Gambino crime family and known as the ‘Teflon Don,’" he said, though that was a federal case. 

"Say what you want about Donald Trump, but he’s not a mobster," Shu added.

"The trial is over and there’s no chance that Judge Merchan is going to vacate the verdict and grant a retrial," Shu told Fox News Digital. "Both the verdict and the gag order now will go through the New York state appellate system as two separate appeals."

Shu noted that Trump’s lawyers filed an expedited appeal of the gag order and that typically "anytime a litigant asks the highest court in a jurisdiction to step in and shortcut the process, it has to be something very unusual for them to agree."

Steven Cheung, Trump campaign spokesperson, said in a statement, "President Trump and his legal team will continue to fight against the unconstitutional Gag Order imposed by Justice Merchan."

"The Gag Order wrongfully silences the leading candidate for President of the United States, President Trump, at the height of his campaign. The Gag Order applies only to President Trump and not to any of his political opponents, critics, or even Crooked Joe Biden," Cheung wrote.

"The Election Interfering Gag Order violates the First Amendment rights of President Trump and all American voters, who have a fundamental right to hear his message," he added.

Fox News Digital reached out to Merchan's and Bragg's offices for comment. 

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