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Risking contempt, Trump casts himself as martyr and defender of free speech over court's gag orders

Trump has been subjected to gag orders in Smith’s D.C. election case, Bragg’s prosecution, and James’s civil case, each of which have limited his ability to comment publicly on the allegations against him and the key players in the proceedings.

Published: April 23, 2024 11:00pm

Former President Donald Trump faced a contempt hearing Tuesday to address claims from Manhattan District Attorney Alvin Bragg’s office that he repeatedly violated a gag order from the federal judge overseeing his prosecution, marking the latest development in a string of fights over his public speech amid his myriad civil and criminal trials.

Judge Juan Merchan deferred judgement Tuesday on whether to hold Trump in contempt, but appeared skeptical of the arguments from his attorneys who argued that Trump's remarks did not run afoul of his restrictions.

Trump currently faces four criminal prosecutions, including that of Bragg, two from special counsel Jack Smith, and one from Fulton County (Ga.) District Attorney Fani Willis. On the civil side, he remains mired in litigation over New York Attorney General Letitia James’s civil fraud case and has also faced civil action from E. Jean Carroll over defamation and sexual battery claims.

Of those, Trump has been subjected to gag orders in Smith’s D.C. election case, Bragg’s prosecution, and James’s civil case, each of which have limited his ability to comment publicly on the allegations against him and the key players in the proceedings.

Trump has broadly contended that each of the cases are part of a wider political witch hunt designed to derail his 2024 bid to return to the White House and has steadfastly denied any wrongdoing. The former president has long taken aim at the leading prosecutors, notably lumping Willis, Smith, Bragg, and James into the so-called “Fraud Squad” last year in an August ad.

But his messaging around the gag orders has seen him recast his legal woes as a form of political pseudo-martyrdom that has even seen him invoke the legacy of South African dissident and later President Nelson Mandela.

James’s civil fraud case

Judge Arthur Engoron issued the first of the gag orders last October as part of James’s case in which she alleged that Trump had manipulated the value of his assets to secure favorable loan terms and lower insurance premiums.

Prompting that gag order was a post Trump made on Truth Social in which he dubbed Engoron’s chief clerk “Schumer’s girlfriend” in reference to Senate Majority Leader Chuck Schumer. That initial order barred all participants in the case from making public statements about members of the court staff.

A month later, however, Engoron issued a second gag order that also applied to his attorneys and barred comment on his communications with court staff. The order followed Trump attorney Christopher Kise informing the court that it may pursue a mistrial due to a report from Breitbart News suggesting that Engoron’s clerk, Allison Greenfield, had violated judicial ethics rules against excessive political donations.

Two weeks later, Trump secured a temporary stay on the gag order, with Judge David Friedman curtailing the restrictions against his public speech, though an appellate court reinstated the gag order by month’s end. He requested in December that the New York Court of Appeals conduct an “expedited review” of the matter, though in January it declined to toss the order.

Throughout the process, Trump ran afoul of Engoron’s orders and incurred judicial fines over the violations. Though Trump had long criticized the case as partisan in nature, the imposition of fines saw him begin to assert the judge’s complicity.

He incurred one fine after calling Engoron a "very partisan judge” and making a reference to Greenfield. The penalty, however, led to a significant escalation of his rhetoric, with Trump claiming that the judge had “GONE CRAZY IN HIS HATRED OF 'TRUMP,'" and that he was “trying to protect RACIST A.G. Letitia James, who has no case, lost the appeal, but has a tyrannical and unhinged Trump Hating Judge.”

“This is Judicial Misconduct, coupled with Prosecutorial Misconduct, and somebody from the State of New York must step in and stop this Complete & Total Miscarriage of Justice!" he added at the time.

Smith’s election case

U.S. District Judge Tanya Chutkan issued the second gag order just weeks after Engoron as part of Smith’s prosecution over Trump’s efforts to challenge the 2020 presidential election. Smith first sought the order in September, citing Trump’s past criticism of prosecutors.

"This is not about whether I like the language Mr. Trump uses. This is about language that presents a danger to the administration of justice," Chutkan said at the time. "His presidential candidacy does not give him carte blanche to vilify public servants who are simply doing their jobs.”

Trump promptly appealed the order and linked limitations on his public commentary to the rights of his supporters to hear his opinions.

"By restricting President Trump’s speech, the Gag Order eviscerates the rights of his audiences, including hundreds of millions of American citizens who the Court now forbids from listening to President Trump’s thoughts on important issues," his attorneys argued at the time. Chutkan temporarily stayed the order while he appealed.

Trump’s attempts to directly link his own free speech with the rights of American voters appeared to resonate with an unlikely backer in the form of the American Civil Liberties Union, which argued against the gag order on grounds that it was overly vague.

“The obvious and unprecedented public interest in this prosecution, as well as the widespread political speech that it has generated and will continue to generate, only underscores the need to apply the most stringent First Amendment standard to a restraint on Defendant’s speech rights,” the ACLU also asserted.

Chutkan reimposed the gag order the following day, which prompted Trump to appeal to the D.C. Circuit Court of Appeals, which granted a temporary stay in early November. A three-judge panel of that court heard arguments on the matter later in the month and appeared critical of the order’s scope. Ultimately, the judges upheld the order, but narrowed its scope to bar Trump from discussing “known or reasonably foreseeable witnesses” and permitted Trump to criticize Smith himself. The panel further limited Trump’s restrictions to comments “made with the intent to materially interfere with, or to cause others to materially interfere with” the case. The appeals court denied a bid from Trump to rehear the matter en banc in January.

District Attorney Bragg’s “hush money” case

Bragg’s case has witnessed the most recent gag order against Trump as well as some of his most pointed rhetoric on the subject to date.

Prosecutors initially sought the gag order in February in light of Trump’s “long history of making public and inflammatory remarks about the participants in various judicial proceedings.” Trump’s team retorted at the time that it “"would be unconstitutional and unlawful to impose a prior restraint on President Trump’s First Amendment speech.”

Judge Juan Merchan imposed the gag order in late March, but Bragg subsequently asked him to expand its scope after Trump raised concerns over the judge’s daughter’s employment with a left-wing organization. Trump had previously sought Merchan’s recusal over his daughter, Loren’s, employment with Authentic, which boasts both President Joe Biden and Vice President Kamala Harris as clients. Merchan obliged Bragg.

Early in the process, Trump’s rhetoric focused on the judge’s daughter and suggested that Merchan’s decision-making was influenced by her.

"So, let me get this straight, the Judge’s daughter is allowed to post pictures of her ‘dream’ of putting me in jail, the Manhattan D.A. is able to say whatever lies about me he wants, the Judge can violate our Laws and Constitution at every turn, but I am not allowed to talk about the attacks against me, and the Lunatics trying to destroy my life, and prevent me from winning the 2024 Presidential Election, which I am dominating?" he said in March.

"Maybe the Judge is such a hater because his daughter makes money by working to 'Get Trump,' and when he rules against me over and over again, he is making her company, and her, richer and richer. How can this be allowed?"

As the trial approached in April, however, Trump’s remarks grew sharper, with him indicating a willingness to accept imprisonment for speaking what he deemed “truth.”

“If this Partisan Hack wants to put me in the 'clink' for speaking the open and obvious TRUTH, I will gladly become a Modern Day Nelson Mandela - It will be my GREAT HONOR,” he posted. “We have to Save our Country from these Political Operatives masquerading as Prosecutors and Judges, and I am willing to sacrifice my Freedom for that worthy cause.”

Last week, Bragg asked Merchan to fine Trump $3,000 for alleging violating the gag order over his categorization of witnesses Stormy Daniels and Michael Cohen as "two sleaze bags who have, with their lies and misrepresentations, cost our Country dearly!”

The following day, Bragg moved to hold Trump in contempt.

Is it working?

The evolution of Trump’s rhetoric from criticizing prosecutors over bias to claiming political martyrdom and essentially daring the courts to throw him in prison appears to have resonated somewhat with unlikely audiences.

Amid the trial, Trump visited Harlem and found a degree of public support, a visit that led to viral videos of black and Latino residents gathering in his support. Outlets such as the Financial Times subsequently published articles attesting that Trump’s appeals to the issues facing New York, especially on the crime and economic situations, had resonated. His status as a defendant and alleged victim of judicial malfeasance, moreover, also appears to have struck a chord.

“Here’s the sad part about it... It gives credence to the argument Trump made during a speech weeks ago where he talked about black folks relating to him and his plight,” ESPN personality Stephen A. Smith said of Trump’s New York case during a Friday appearance on NewsNation. “Now, what the h--- would black folks have in common with a guy who was born on third base thinking he hit a home run, born with a proverbial spoon in his mouth? It’s the legal system.”

“This man right here, who’s the presumptive GOP nominee is in a position to literally get back into the White House because of what you’re doing to him we find fairly relatable to things that have been done to folks in our community. And it’s happened for decades,” he went on. “There’s no escaping that fact and Trump pointing it out and being accurate in doing so in perhaps the height of embarrassment for the Democratic Party.”

Speaking on the John Solomon Reports podcast in an interview set to air Wednesday, pollster John McLaughlin highlighted the public perception of the cases against Trump, contending that clear majorities saw the cases as politically motivated.

"We're what 196, 195 days away from the election today, where 66% of all voters see these indictments against Donald Trump as political," he said, adding that "56% think Joe Biden has played a role in these indictments ordering them against President Trump."

"54 to 36, they say that a double standard of justice in the United States... 53% to 34%, they believe Joe Biden's training put Donald Trump in jail," he went on.

"[Biden] is driving the narrative against [Trump] with these trials where if you watch MSNBC, CNN and the mainstream networks, you think this is a legitimate, you think it's legitimate, it's not," McLaughlin contended. "And everybody else, the majority of Americans are getting this that, you know what they're trying to do here is wrong."

The pollster further pointed to the overwhelmingly Democratic jury pool in New York City and the participation of a former Biden Department of Justice official in the prosecution.

"So it's completely rigged. You know, like these other indictments that [were] directed by Biden and his supporters, and it's all about stopping Donald Trump from winning reelection because we're heading the pulse," McLaughlin concluded.

Ben Whedon is an editor and reporter for Just the News. Follow him on X, formerly Twitter.

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