With jury selection scheduled to begin in Donald Trump’s New York hush money trial in three weeks, the former president’s defense lawyers have asked Judge Juan Merchan to deny prosecutors’ recent request for a limited gag order, arguing the former president should be permitted to fully respond to attacks by his political opponents.
Defense lawyers argued in a filing Monday that the proposed gag order fails to meet the legal standard for restrictions on a defendant’s speech and described the proposed gag order as a “unconstitutional” effort “to assail President Trump based on politically motivated indictments.”
“American voters have the First Amendment right to hear President Trump’s uncensored voice on all issues that relate to this case,” defense attorney Todd Blanche wrote in the filing. “President Trump’s political opponents have, and will continue to, attack him based on this case. The voters have the right to listen to President Trump’s unfettered responses to those attacks — not just one side of that debate.”
Last week, Manhattan District Attorney Alvin Bragg requested that Judge Merchan limit Trump from making public comments about potential witnesses, judicial staff, and any jurors in the case, as well as prosecutors other than Bragg himself.
“Defendant has a long history of making public and inflammatory remarks about the participants in various judicial proceedings against him, including jurors, witnesses, lawyers, and court staff,” prosecutors wrote in their filing last week. “Those remarks, as well as the inevitable reactions they incite from [the] defendant’s followers and allies, pose a significant and imminent threat to the orderly administration of this criminal proceeding and a substantial likelihood of causing material prejudice.”
In response, defense lawyers described the gag order as a “heckler’s veto” which fails to identify or substantiate which third parties might engage in threats or harassment.
They also argued that Trump has complied with past gag orders, as well as the protective order imposed by Merchan in this criminal case.
Former President Donald Trump at New York State Supreme Court in New York, on Oct. 2, 2023.
Stephanie Keith/Bloomberg via Getty Images
“The First Amendment under the State and federal Constitutions requires that President Trump’s ability to respond to public attacks relating to this case, as he continues his leading campaign for the Presidency, be afforded the highest level of constitutional protections,” the filing said.
While other courts have upheld the gag orders in Trump’s other cases — including New York’s Court of Appeals and the D.C. Circuit Court — Trump’s lawyers argued that those other examples are irrelevant to this request for a gag order.
“It is of no relevance for purposes of the prior restraint sought by the People that courts in other cases — with different facts, different witnesses, and at different times — have entered other gag orders that violated President Trump’s constitutional rights and have been contested in appellate proceedings,” they wrote.
Trump in April pleaded not guilty to a 34-count indictment charging him with falsifying business records in connection with a hush money payment made to adult film actress Stormy Daniels days before the 2016 presidential election. The former president has denied all wrongdoing.
The trial is scheduled to get underway on March 25.