(KXAN) — Former President Donald Trump may no longer be able to sound off about the criminal case against him in just a matter of hours or days.
Acting New York Supreme Court Judge Juan Merchan will likely issue a gag order in the criminal case, according to a former senior staffer in the Manhattan District Attorney’s Office, Duncan Levin.
Now a private criminal defense attorney in New York, Levin said gag orders are relatively common there, and “widely expected” in the Trump case.
Levin said a gag order could be issued as soon as Tuesday, before Trump’s scheduled rally at Mar-a-Lago.
Q&A on the possibility of a gag order
Tom Miller: With the former president’s arraignment on Tuesday, you’ve said you expect a gag order to be part of the terms of his release. Why is that?
Duncan Levin: I think there are a number of factors that make it likely that there’ll be a gag order in the case. The first is that gag orders are relatively common in criminal cases. In this particular case, where there’s a lot of pretrial publicity, and you have a high-profile defendant, it makes it even more likely. I think what tips the scale is the fact that Trump, who is now a criminal defendant, facing criminal charges, is making lots of comments, extra-judicially about the case. He’s speaking out on social media platforms and elsewhere about the case. That’s just something that the court won’t abide and often doesn’t abide. It’s obviously a very unusual case and in every way possible, he’s not your typical defendant. This is not your typical case. But gag orders are relatively common in New York courts, and I think that everybody familiar with cases like this widely expects the judge to implement a gag order.
TM: How broad or narrow do you believe a gag order could be?
DL: Generally speaking, gag orders are limited to the subject matter of the litigation. I think it’s likely that the court will say to Mr. Trump, as well as to all of the lawyers who are in front of him on both sides, that they’re not to be litigating the case in public. I think the point of that is to try to not taint a potential jury pool. Obviously, jurists here in New York are very familiar with Mr. Trump. They’re familiar with the charges. This is something that would be hard to avoid if you were trying to avoid it. But at the same time, the judge is trying to maintain control over the facts that are coming out in some of these pretrial court appearances.
TM: What do you say about the likely argument that this would be infringing on the former president’s first amendment rights?
DL: This is an issue that comes up often and gag orders have routinely been found to be legal, and constitutional. Gag orders are things that are imposed in thousands of criminal cases around the country on a near daily basis. They’re particularly acute in cases where there’s a lot of pretrial publicity. The black letter law is really clear that gag orders do not infringe on the First Amendment. So I think that that’s an argument that’s likely to fail.
TM: Can you explain what is the penalty for breaking a gag order [in New York]? And how far do you think a judge would potentially take that?
DL: The judge has the ability to implement fines on Mr. Trump and the lawyers for breaking an order of the court, a gag order, as well as potentially putting Mr. Trump in jail for up to 30 days. It’s something that’s very serious, and that Judge Merchan is going to obviously have to balance against Mr. Trump’s ability to communicate to all of the people out there who want to hear about the case. I think that the judge is likely to give a long leash to anybody to be able to discuss the case. But at the same time, if it comes down to threats or anything that the judge believes is really infringing on the prosecutors’ ability to have decorum here and to have a fair trial, it’s something that I don’t think he’ll hesitate to implement sanctions.