Don’t gag defendant Trump. That's part of his plan.


Former president Donald Trump is the defendant in four criminal proceedings in four jurisdictions. Most people who are charged with a crime, even if it is only one, would listen to their attorneys and not speak out about the accusations. They wouldn’t even question the fairness or impartiality of the prosecutor. But not Donald Trump. Mike Pence, his former vice-president and rival for the presidency, is also being attacked by him through his Truth Social platform and campaign. Should something be done to stop these attacks?

At first, the question should be addressed to the prosecutor in each case and the judge in each case. The answers might not be the exact same in every circumstance. Trump was already ordered to refrain from speaking directly to witnesses in these cases without his lawyers present. Trump’s continued attacks on the proceedings could make it more difficult to select a jury who hasn’t heard Trump’s claims that the cases were all about politics. It will be difficult to find impartial juries for these cases. But is it going to become more difficult because of Trump’s statements? What about Trump’s attacks on Pence and others, which will likely not stop? They knew that Trump was going to deny what they said and call them liars when they went before the grand jury. As a prosecutor I wouldn’t be worried about Trump publicly claiming that adverse witnesses were liars, or worse. I would also hope that he continued down this path, because his statements could prove very helpful at trial. Here’s how.

Defendants in criminal cases have the right not to testify, and most lawyers in most cases strongly urge their clients not to take the stand in their own defense. Many lawyers think that Trump will accept this advice and avoid being cross-examined, given his history of lying. If a defendant does not testify, the government cannot tell the jury about his failure to give a version of events in court.

But Trump’s out-of court statements – such as calling Pence an liar – may be admissible in his case, and the jury is sure to notice that despite making a number of claims out-of court, Trump does not seem willing to answer under oath. The prosecutors might decide to let Trump continue to criticize the charges brought against him, and not to ask for a gag-order unless they are certain that Trump is actually threatening a witness. They also do not gain any benefit by allowing Trump disparage the proceedings and accuse witnesses outside of the courtroom of all kinds of evil acts. Trump’s seemingly irrational behavior is due to his attempt to get these four judges to issue a broad gag order. This would allow him to challenge the judge’s disqualification and appeal any adverse orders on the grounds that he was violating his First Amendment rights as a presidential candidate. This appeal, while not without merit depending on the scope of the gag, would certainly delay any trial. That seems to be Trump’s main goal at this point. The fact that there is a presidential race going on at the same time as these prosecutions raises First Amendment issues with any gag orders. The judicial action Trump fears the most is not a gagged order, but a speedy court trial.

As soon as a trial begins, Trump will be under a new set of constraints and will be like every other criminal defendant — under the control of a trial judge with the power to do everything necessary to ensure that the trial is fair and not sidetracked by Trump’s social media comments and campaign speeches.

Alan B. Morrison is associate dean at George Washington University Law School, where he teaches constitutional law and civil procedure. He was a former Assistant U.S. attorney.

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