Donald Trump’s gag order

| 3:00 pm EDT March 20, 2023
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There has been a lot of talk about what kind of pretrial conditions the Manhattan District Attorney will seek at Donald Trump’s criminal arraignment, and what the judge will end up instituting.

My position all along has been that because Trump is being charged with nonviolent crimes in this particular case, and he has no criminal record, and (in spite of Twitter conspiracy theories) he’s not a serious flight risk, he’s likely to be released on bail – or perhaps even on his own recognizance.

If this happens I won’t be bothered by it, because habitual criminals like Trump never can help themselves, and he’ll quickly cross the lines that a criminal defendant awaiting trial is not allowed to cross, and the judge will begin placing incrementally harsher restrictions on him. More to the point, if Trump is out on bail, he may try to tamper with witnesses, which would result in him getting caught, which would result in additional criminal charges and increased odds of conviction.

But there’s something else I think may end up being more important in all of this. Criminal defendants awaiting trial are not allowed to publicly attack the prosecutor or the judge – and that won’t change just because the criminal defendant is named Donald Trump.

Judges all have different approaches on this kind of thing. We don’t know which judge will be randomly assigned to Trump’s case. We do know that it’ll be a New York judge, not a federal judge, so it obviously won’t be someone Trump appointed. Even that aside, one thing all judges have in common is that they don’t tolerate it when criminal defendants defy them.

Maybe the judge in the case will hit Trump (and everyone else involved in the case) with a gag order right out of the gate at arraignment. Or maybe the judge will simply lay out the rules for Trump, and wait until he breaks them before cracking down. But make no mistake: the judge will have 100% of the power in this dynamic. Judges can and do assign incrementally more severe pretrial restrictions for violating their orders, up to and including pretrial incarceration.

We’ll see if Donald Trump is dumb enough to try to go to war with the judge in his criminal case. Trump may have gotten away with those kinds of antics back when he was the “President of the United States” and these court battles were over whether or not his various executive orders would stand. But these days Trump is just a criminal defendant awaiting trial – and to put it bluntly, the judge owns his ass.

So if there’s anything to watch for during Donald Trump’s arraignment hearing this upcoming week, it’ll be what the judge says or does with regard to Trump publicly running his mouth about the case. Trump clearly wants to use his indictment as a basis for using his phantom 2024 “campaign” to line his pockets with donations. That’ll become much harder if the judge bars him from pushing his conspiracy theories about the District Attorney and such. And if Trump indeed can’t control himself when it comes to the judge’s orders, he’ll spin this into an ugly loss for himself before he even gets to trial.