Tuesday Talk*: Muzzling A Candidate Defendant

In the usual course, a criminal defendant would not deliberately try to anger the judge in his case. It’s not that one shouldn’t expect a judge to be above personal attacks and render decisions that are correct regardless, but to the extent a defendant would want the judge to be  as sympathetic to his cause as possible, attacking the judge is not the best plan. Then again, Donald Trump is not the usual defendant.

It was an explosive claim from Donald J. Trump, just weeks before his Manhattan criminal trial is set to begin: He assailed the judge’s daughter on Wednesday, saying she had used an image of the former president behind bars as a social media profile picture.

The photo made it “completely impossible for me to get a fair trial,” Mr. Trump wrote on Truth Social. He demanded that the judge, Juan M. Merchan, recuse himself.

Whether or not a twit by the judge’s daughter reflects on the judge is one question. An adult daughter is certainly entitled to her own views, including the desire to see Trump behind bars, but just as Justice Clarence Thomas is not Ginni, Justice Merchan is not his daughter. But this being Trump, naturally he got it wrong anyway.

But there was a problem with his claim: The New York State Court system says the account on X is bogus.

Nonetheless, the prosecution sought to amend the gag order, prohibiting Trump from attacking witnesses, prosecutors other than Alvin Bragg and court staff. Justice Merchan didn’t include himself in the order, it being unseemly for a judge to order himself above grievance, but then he didn’t anticipate that Trump would go after his family.

On Thursday, Mr. Trump intensified his attacks, identifying Justice Merchan’s daughter by name and accusing her of being “a Rabid Trump Hater, who has admitted to having conversations with her father about me, and yet he gagged me.” The former president then renewed his demands that the judge recuse himself from the case, calling Justice Merchan “totally compromised.”

And on Saturday, in an ominous escalation, Mr. Trump posted a news article to Truth Social that displayed two pictures of Ms. Merchan.

It’s now called “stochastic terrorism,” where “political or media figures publicly demonizing a person or group in such a way that it inspires supporters of the figures to commit a violent act against the target of the speech.” It’s not that it’s a true threat, as it doesn’t call for imminent violence, but the threat is clear and the potential, if not likelihood, of violence or threats of violence is intended to exert political influence. Attacking a family member is just as, if not more so, disturbing than attacking the judge directly.

When the attack comes from a defendant in a criminal prosecution, the purpose is to subvert the functioning of the legal system. It is certainly within the judge’s authority to prohibit conduct that undermines the operation of the legal system.

But Trump isn’t merely a defendant, but the presumptive Republican nominee for president, and there is a strong argument to be made that bringing him to trial, and obtaining a conviction, is itself intended to influence the polity by turning candidate Trump into felon Trump. There is, of course, a similarly strong argument to be made that Trump should be tried for his conduct and the voters should be aware that the person for whom they might vote is a criminal.

As the law provides for all defendants, Trump included, he remains innocent until such time as he pleads guilty or is found guilty by a jury. Damning as the underlying facts of the case may (or may not, according to your religion) be, the allegations are already well known. As Trump straddles the positions of presidential candidate and criminal defendant, the conflict is manifest.

As candidate, he has reason to attack the process and the people involved in that process to argue that he is the perpetual feckless victim of an abusive legal system seeking to impugn him to harm his candidacy. As criminal defendant, he has no right to engage in attacks against individuals in order to threaten, and perhaps get his sycophants to do harm, to participants in the system society has crafted to resolve the issue of criminal guilt.

Should Trump be gagged? Granted that Trump’s attacks are wrong, infantile and outrageous, but as a candidate, is he not entitled to use whatever he deems viable to fight against the taint of being a criminal defendant and, potentially a felon? Sure, it might be tactically wiser to challenge the accusations rather than attack the family of the people involved in his criminal prosecution, but it’s much easier to attack people, especially falsely, than to explain why you aren’t guilty. Even if Justice Merchan’s gag order is legally appropriate, does the fact that Trump is also the candidate change the equation of what he should be allowed to say?

*Tuesday Talk rules apply.

14 thoughts on “Tuesday Talk*: Muzzling A Candidate Defendant

  1. Hal

    Does gagged, hog tied, stuffed in a barrel, and set on fire seem too harsh?

    Asking for a friend.

  2. F. Lee Billy

    What does this latest tempest in a teapot have to do with the price of tea in China 🇨🇳? We smell another Supreme Court case kerfuffle brewing. This is so ridiculous, it’s not funny.

  3. Pedantic Grammar Police

    Trump’s flinging of mud during a mud-fight is sensible and appropriate. It could be argued that he started it, since he refined to a fine art the practice of pinning silly nick-names on one’s opponents, and he threatened his good friend Hillary with jail during the 2016 campaign, but in his defense, he did not actually try to jail anyone, and after the election he made it clear that his talk of crimes and jail was merely a campaign strategy.

    The unprecedented lawfare being waged against Trump by his political opponents, some of whom campaigned on a “Get Trump” platform, is similar to bringing a nuclear weapon to a knife fight.

  4. Ken Hagler

    The First Amendment doesn’t have an exception for political dissidents. Indeed, the whole point of it is to protect political dissidents.

    1. Skink

      1A has many exceptions, one of which is conduct related to court proceedings. that exception includes “political dissidents.”

  5. Virginia Burke

    There is a mechanism to Trump’s spinning wheel. Lara Loomer feeds Trump with lies and he spins a yarn. Unfortunately this feckless, potentially dangerous grift seems to have no bottom, no guard rails and few consequences. The Judge’s only recourse is to shut him up using threat of more legal action.

    It is the least that can happen as a preventative (yes, real lives matter) and as a consequence. Free speech must have limits. Being a candidate is not a protective coat of armour that a criminal can shield himself with, though you would never know it listening to Trump’s defenders. Free speech is a privilege not a loaded gun.

    1. Grant

      Saying ‘free speech must have limits’ is often code for ‘I censor speech I don’t like.’

      The cure is worse than the disease. The more the self-righteous bend laws in an effort to stop Trump, the more it excuses retaliatory bad behavior. We don’t want a banana republic, whether because of Trump or because of overreacting to Trump.

      Trump’s speech exposes him as unfit to be president. Let him do his dance. Let him pay at the polls.

      1. PK

        Comments must have limits.

        Saying “free speech has limits” is accurate. The point is to apply one such limit to this situation, one with a candidate for President. You don’t address Trump’s status as a candidate and instead seem to treat him as something special. That’s as problematic as censoring speech you don’t like.

        The “banana republic” refrain is so overplayed and divorced entirely from its original sense that it’s incomprehensible. Please do not try to explain whatever you mean by it. I don’t want to know.

    2. Pedantic Grammar Police

      Right. Free speech is a privilege, similar to gun privileges, as outlined in the Bill of Privileges. And, you can’t shout fire in a loaded theater. Right?

  6. Stephen

    The new normal seems to be that protesting government officials at their homes (or at dinner or at a theater) with their families, including Supreme Court Justices, is acceptable. I don’t see how the purpose of those protestors (which seems to be pure intimidation unless they get their way) is any different than what Trump is doing. While I agree that it seems to be a dumb trial strategy, the gag order bothers me as selective. Given what prosecutors have said publicly about Trump and their cases against him, it gives the appearance that only one side is being silenced.

  7. L. Phillips

    From the perspective of a non-lawyer either outcome – to gag or not to gag – looks like a winner for Trump.

    If the gag sticks, the swath of people who are suspicious of the law and courts – gun owners, ranchers, farmers, oil workers, small businesses, automobile purchasers and those who are carrying their life savings in cash during a traffic stop come to mind – may deduce that the gag order is just a system they already resent protecting itself.

    If the gag does not hold up under challenge, then Trump publicly chalks up a “win”.

    I am not making a “four dimensional chess” argument. I’m positing the unhappy meeting of a complete lack of boundaries with a distinct legal/political zeitgeist.

  8. phv3773

    If, as is often said, no one is above the law, then Trump must be separated from the law in some other dimension. Too low, perhaps.

  9. Miles

    Trump argued to Judge Merchan that his attacking his daughter was core political speech, which says a lot about what Trump considers political speech. No doubt he believes these attacks to be politically beneficial for him, and thus political speech as far as he’s concerned. As for the gag order, Judge Merchan has the authority and duty to prohibit speech that improperly impairs the legal system, and as long as Trump is a defendant, that’s a line even a candidate cannot cross.

  10. Jardinero1

    This has little to do with the twitter photo. The purpose of the Trump tirade was to call attention to Judge Merchan’s appearance of conflict of interest. Connect the dots. Start with Congressman Schiff. Schiff’s stock in trade is Trump hating. Without Trump, literally nobody would know who is Congressman Schiff. Schiff pays Judge Merchan’s daughter, millions, yes millions, to manage Schiff’s trump hating campaign. Schiff and Judge Merchan’s daughter have a personal and a financial interest in managing and maintaining the mania of Trump hating. Judge Merchan knows this. Judge Merchan loves his daughter and wants her to be successful. Maybe Merchan has a conflict of interest in this case. Maybe he should recuse himself. I say maybe. This would benefit Trump but not his daughter. If he did recuse, then Trump would have one less thing to bloviate about. Schiff and Merchan’s daughter would have one less arrow in their quiver for their Trump hating PR campaign. Maybe.

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