As we enter day two of Donald Trump’s New York City trial (we’re still in jury selection, last we heard), we get news that Alvin Bragg is seeking to hold Joe Biden’s opponent in contempt of court.
BREAKING: Alvin Bragg asks Judge Merchan to hold Trump in contempt over 3 gag order ‘violations’https://t.co/LD2Cc9cf5Dhttps://t.co/LD2Cc9cf5D
— Jack Poso 🇺🇸 (@JackPosobiec) April 16, 2024
From the Post Millennial piece Posobiec linked to:
Manhattan DA Alvin Bragg’s office has filed a formal request to hold Trump in contempt over three social media posts.
Prosecutors said during Monday’s hearing that three of Trump’s social media posts from this month ‘plainly violate’ Judge Juan Merchan’s gag order, claiming they target witnesses who will be testifying at the trial, according to ABC News. …
Trump’s attorneys have insisted that he was responding to ‘repeated, salacious, demon attacks’ by porn star Stormy Daniels and former Trump attorney Michael Cohen.
A hearing on the matter has been scheduled for next Tuesday.
According to Fox News, Trump could be fined $1,000 for each violation of the gag order.
We had to include that line about ‘demon attacks’ even though now it is giving us flashbacks to our Atari days:
Joking aside, the serious problem here is that the order—and the attempt to enforce it—is unconstitutional election interference in violation of Trump's First Amendment rights.
To back up a little bit, we think it is common knowledge but we will say it anyway: ‘Contempt of court’ is just a fancy way of saying you are disobeying the court. No court will punish you for merely feeling the emotion of contempt. It's what you do that matters. Thus, Bragg is saying that Trump violated a gag order, and should be punished for doing so.
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Therefore, you want to start with the order itself, which we linked to, here:
FYI, for those following along at home, this is the gag order that Trump is accused of violating. https://t.co/8R6hnsouFQ
— Aaron's Law (@AaronWalkerLaw) April 16, 2024
The operative language in the amended order—issued on April Fool’s Day, no less—says the following:
ORDERED, that the Court's Order of March 26, 2024, is amended as indicated below.
Defendant is directed to refrain from:
a. Making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding;
b. Making or directing others to make public statements about (1) counsel in the case other than the District Attorney, (2) members of the court's staff and the District Attorney's staff, or (3) the family members of any counsel, staff member, the Court or the District Attorney, if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel's or staffs work in this criminal case, or with the knowledge that such interference is likely to result; and
c. Making or directing others to make public statements about any prospective juror or any juror in this criminal proceeding.
As you might have noticed, it says that this amends the prior order, but we have looked at the prior order, and this amended order basically restates the prior order in full, while adding a little to it.
In addition to that, Axios has a copy of the Bragg motion here:
Manhattan DA Alvin Bragg is urging a judge to hold Trump in contempt for alleged gag order violations, citing his recent posts "attacking two known witnesses — Michael Cohen and Stormy Daniels."
— Axios (@axios) April 16, 2024
https://t.co/liuN56qxBk
They credit Bragg as writing this, but while he is responsible for the content of the motion, on the face of it, it was actually written by a bunch of other lawyers. We are not saying this to slight Bragg or to relieve him of responsibility for it, just to set the record straight on who did the actual writing. Good or bad, District Attorneys are more typically managers and mostly leave the boots on the ground litigation to subordinates, even in a case as high profile as this. But we have no doubt that he at least approved of the substance of this order—especially because this is such a high-profile case.
The motion centers around several TruthSocial posts (color us shocked) and it is so whiney, they show you how unconstitutional this whole thing is. For instance, they write at one point:
Such extrajudicial statements, the Court found, pose a ‘very real’ ‘threat to the integrity of the judicial proceedings’ by intimidating both defendant's direct targets as well as others who may be ‘called upon to participate in these proceedings’ and who rightly fear being subject to similar vitriol (id. at 2).
Oh noes! He made mean Tweets TruthSocial Posts! Won't anyone stop those mean posts?
We are reminded of this moment in Monty Python and the Holy Grail:
And here’s the first of the Dreaded TruthSocial Posts of Contempt that Trump allegedly made or caused to be made:
The post makes it hard to read the picture of Avenatti's post on Twitter/X, but it is real, and the text reads (with minor censorship):
We can’t be hypocrites when it comes to the 1st Amendment. It is outrageous that Cohen and Daniels can do countless TV interviews, post on social, & make $$ on bogus documentaries - all by talking sh-t about Trump - but he’s gagged and threatened with jail if he responds
So ... we find ourselves agreeing with Michael Avenatti. That feels weird.
Joking aside, it also highlights how absurd all of this is. Avenatti can criticize the order, but Bragg's team seems to think that Trump can't share a picture of Avenatti criticizing the order.
Here's the second Dreaded TruthSocial Post of Contempt:
For some reason, the embedded post handles that picture better than the last one. Still the text is relatively small so if you are having trouble reading it, here's a brief summary: It is a 2018 statement by Daniels denying she had an affair with Trump and denying that she is saying this because she was paid hush money. We tend to think Trump did have an affair with her, but if we were on a criminal jury, there's no way we could find there was proof beyond a reasonable doubt, unless we can can find more than her word and the non-disclosure agreement.
On to the third Dreaded TruthSocial Post of Contempt:
We say Trump ‘allegedly’ wrote these because Trump could claim someone else wrote them without his knowledge. Maybe he could say ‘I left my phone laying around and someone must have picked it up and wrote those posts!’ We don’t think that is likely, but it can be a problem in cases where the government wants to punish a person for statements on the Internet. We have seen courts refuse to enter comments written on the Internet until they had proof that the purported author actually wrote it, even if it was published under his or her name.
Indeed, we wouldn’t be entirely shocked if Trump is deliberately violating the order as an act of Civil Disobedience. Maybe he is daring the judge to throw him in jail for speech that is protected by the First Amendment. His popularity seemed to be boosted, at least in the Republican party, every time a new charge dropped, so maybe he calculates that actually being in jail will help him.
And, not for nothing, but when Dr. Martin Luther King, Jr. was thrown in a Birmingham jail, he was disobeying a court order that limited his freedom of expression. Does anyone today think that this reflects badly on Rev. Martin Luther King, Jr.? Or do we think the fact he was thrown in jail for peaceful expression reflects badly on the authorities in Birmingham? We are not saying Trump is like Dr. King in every respect, but the judge risks creating a parallel that might backfire.
Of course, some degree of a gag order is justified and common. Trump could be rightfully prohibited from actual threats, or incitement of violence against these individuals (not to mention engaging in violence or directing others to do so). Intimidation could be prohibited, but only so long as it is the ‘constitutional’ definition of intimidation:
Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.
Virginia v. Black, 538 U.S. 343 (2003). Indeed, this court’s limitation in the second part requiring Trump’s statements to be made ‘with the intent to materially interfere with, or to cause others to materially interfere with, counsel's or staffs work in this criminal case, or with the knowledge that such interference is likely to result’ can’t be squared with the Supreme Court’s admonition that ‘Listeners' reaction to speech is not a content-neutral basis for regulation.’ Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992).
And more basically, it places shackles on Trump that no one else discussing the election has to suffer from. Right now, nothing stops Trump’s almost certain opponent, Joe Biden, from saying ‘I believe Stormy Daniels had an affair with Donald Trump.’ But apparently it is a crime for Trump to say ‘here’s her denying she had sex with me?’ Kamala Harris is likely to be Biden’s running mate and if Biden died (or if they finally ‘Twenty Fifth Amendmented’ Biden), she might end up being Trump’s direct opponent in November. And right now she can say ‘I find Michael Cohen’s testimony to be utterly credible’ but it is a crime for Trump to claim he is a liar and to provide evidence of it. As the Supreme Court said in RAV v. St. Paul, 505 U.S. 377 (1992), the government ‘has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.’
Finally, the Post Millennial said that Trump only faced a potential $1,000 fine per post. This is incorrect. He also faces the possibility of jail for 30 days per violation—it’s in the statutes. The hearing is reportedly scheduled for next Tuesday, so if he loses and is taken into custody immediately, Trump might be in jail until July 22, for speaking on topic of public interest.
The Republican Convention starts on July 15.
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