The Impertinence and Importance of Judicial Gag Orders

Merchan (AP Photo/Seth Wenig)

Dispassionate political observers should agree on the following sensible proposition:  If the reason for a judicial gag order has expired, the gag order should also expire.

Gag orders at trial generally are imposed by judges to preserve the integrity of a jury’s verdict. The commonly accepted notion that the accused, facing a deprivation of liberty, should be presumed innocent until found guilty by a jury of his peers evolved from judicious instructions to jurors to accept for deliberation only matters admitted at trial.

The instruction makes no sense when applied to editorial writers, say, or wives suspicious of their husbands’ wandering eyes. Both may presume innocence or guilt to their heart’s content, and there is no need to wait on the deliberations of a jury before reaching a provisional conclusion based on compelling evidence at hand.

Concerning Juan Merchan’s gag order -- slapped on “convicted felon” Donald Trump, a once and future president, Republicans hope -- we must ask ourselves: Why should the gag order continue after the jury in the case, now dismissed by the judge, has rendered its verdict?

Usually, gag orders are imposed by judges on prosecutors, not defense attorneys. When critics of Merchan tell us that the multiple prosecutions of former President Trump are unorthodox, they mean that some usually observant rule may have been violated. For instance, it is highly unusual for a state attorney charged with the prosecution of state laws to bring charges against a former president of the United States. Some critics of the court think that this setup is designed – by whom? – to trip up Trump’s presidential campaign, not an unreasonable supposition.

Also, a larger political and constitutional question pokes its nose into further non-judicial political deliberations.

If it may be demonstrated that a continuance of Merchan’s gag order seriously impedes and distorts decisions that must be made by voters prior to the 2024 national elections, should we consider a post-verdict gag order an impermissible restriction of Trump’s First Amendment right of free speech?

Constitutional scholars attentive to the history of the First Amendment will recall that the amendment was first and foremost intended to protect political speech. The founders of the Republic were unacquainted with modern extensions of the constitutional free speech right to include the right of pole dancers to exhibit their parts to paying customers, or the free speech right of librarians to stock their shelves with semi-pornographic books made available to elementary school children over the ethical objections of their parents and care givers.

So then, the question before a non-judicial bar of public opinion is this: When the New York jury had returned a verdict of guilty, and Merchan had dismissed the jury, bestowing upon the jurors his gratitude for a job well done, why should the judge’s gag order persist beyond the verdict and the provisional conclusion of the case? And does a gag order of this magnitude deprive the felon, a former president and almost certainly a Republican Party nominee for president in the November 2024 national and state elections, of his imprescriptible First Amendment right to free speech?

Some quibblers – though not Merchan explicitly – have suggested that Trump’s passionate followers, so called MAGA Republicans, are easily incited to acts of violence by Trump-the-Stalinist-demagogue. President Joe Biden, Trump’s somewhat meandering Democrat opponent in the upcoming presidential contest, counts himself among a raft of people who hold this view, as does Connecticut Governor Ned Lamont, senior U.S. Senator Dick Blumenthal, all the members of Connecticut’s all Democrat U.S Congressional Delegation, and all the members of Connecticut’s all-Democrat congressional offices.

The above-mentioned Democrat office holders are not here offering judicial opinions. These are political opinions.  And as such, prominent Democrat office holders in the state doubtless would feel it impolitic to slap a gag on either Biden or Blumenthal or, for that matter on pathological liar and prosecution witness Michael Cohen who, during the trail, continued to make damaging public accusations concerning Trump that Trump was unable to answer sufficiently on the political stump so long as he was gagged by Merchan’s apparently deathless gag order.

Why didn’t Marchan sequester jurors during the now concluded trial rather than impose a gag order on the likely Republican Party nominee for president in the midst of a bitterly fought presidential campaign, and why was the order not extended to include witnesses for the prosecution?

Equity – not always applicable in economic or political circumstances – certainly is a proper judicial standard. Justice, according to Aristotle, consists in treating equal things in a like manner and different things in a different manner. We do not want jurists to throw out the baby with the wash water.