Posted by Curt on 9 May, 2023 at 9:55 am. 3 comments already!


by Aaron Walker

This is frankly very troubling:

As Mr. Posobiec correctly notes, this doesn’t prevent Biden from saying anything he wants regarding the case, but that is equally true about DeSantis, or literally anyone else trying to win the Republican nomination for President, or anyone trying to prevent Trump from getting a second term.

And there are a few things to note about this order. First, this is a prior restraint, which is extremely hard to justify under the First Amendment. Second, the court makes zero attempt to justify it—at least in the order. Even if the court was correct, that is a tactical error: ordinary people deserve to know why Trump isn’t allowed to speak freely.

That being said, this appears to only relate to the information provided by the government to the Trump team, what lawyers typically call ‘discovery.’ As you might know, in criminal cases, the government is required to make certain disclosures to the defense—and how much they are required to provide very much depends on what state you are in (and we haven’t studied New York state law on the subject).

The order prohibits pretty much anyone in the Trump camp from sharing anything they learn from the District Attorney’s office with the rest of the world unless the court gives approval ahead of time. Now, certainly some of the information that is turned over can be reasonably ‘gagged.’ For instance, the Trump team might learn the home addresses of witnesses and there is probably no good reason to disseminate any of that in the public sphere.

But the problem is that Trump might also find strong evidence of his innocence, and be unable to tell the world about it. Or he might find out information that doesn’t bear on his ultimate guilt or innocence, but might still help him politically. For instance, hypothetically, Stormy Daniels might admit that Trump really didn’t sleep with her—a revelation that might help politically, even if it might not be determinative of guilt or innocence. These kinds of gag orders are not unusual in criminal cases, but this is not your usual criminal case. To be blunt, the judge hasn’t provided any evidence in this order that he knows that this is a person running for office, or that this case might end up being an issue in that campaign. To put it simply, it isn’t fair to Trump.

At the very least, the judge needed to explain his reasoning in more depth, in writing, so that we can all see if his restrictions are justified. The failure to provide any justification at all is a serious error.

And this part of the order is also troubling:

it is further ORDERED that, in the event Defendant seeks expedited review of this protective order … any obligation that would exist on the part of the People to produce the information and materials that are the subject of this order is held in abeyance pending the determination of the intermediate appellate court;

In other words, if Trump’s legal team tries for an expedited review of this gag order, the court will punish them by allowing the government to withhold information. If the information has to be turned over, the obligation exists regardless of any gag order.

Naturally, there were reactions:

Not quite. He can’t talk about the evidence that the government gives him. That stinks, but let’s not overstate this.

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