Banning Trump from talking about his trial is blatant election interference

A “heckler’s veto” refers to when someone disagrees with a speaker’s message and manages to trigger events that silence the speaker. 

Judge Juan Merchan’s gag order on former President Donald Trump in his hush money case and the sanctions he imposed for Trump’s alleged violation of that order are an outrageous form of that veto.

Merchan slapped Trump with thousands of dollars 🌸in sanctions and even threatened him with incarceration for future violaꦉtions.

In fact, both 🦋t🌺he order and the sanctions are wildly unconstitutional.

While the former president is on trial, with headlines blaring m✨inute-by-minute attacks on the leading pres𒁃idential candidate’s character and conduct, he is gagged from defending himself in the public eye.

Polling suggests the trial could be the deciding factor in Novembe♒r, yet he can’t talk about it.

The Supreme Court🌱 haꦫs held that a “candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election.”

The court a🐬lso ruled that “even a short-lived ‘gag’ order in a case of widespread concern to the community ꧑constitutes a substantial prior restraint and causes irreparable injury to First Amendment interests as long as it remains in effect.”

Perhaps most aptly, it has n♔oted that “the First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for polit🍌ical office.”

Nor can speech restrictions be unlawfully vague, such that 🍎an individual subject to them can’t reasonably figure out w🥂hat’s prohibited.

Against those standards, Merchan’🐼s constitutional abuses are glaring.

The order prohibits statements, for example, about witnesses ꦉconcerning their potential ܫ“participation” in the proceedings.

But Merchan uses the word “participation” broadly, not just to ban unlawful intimidation or retaliation but to include essentially any refeᩚᩚᩚᩚᩚᩚ⁤⁤⁤⁤ᩚ⁤⁤⁤⁤ᩚ⁤⁤⁤⁤ᩚ𒀱ᩚᩚᩚrence to witnesses at all, even when criticizing their credibility.

Trump can’t even tell the electorate why testimony against him shouldn’t be believed — while the witꦺnesses h🌳ave free rein to espouse endless theories on social media and in the press as to why he’s guilty. 

Laws already prohibit witness and jury intimidation and obstruc꧟tion of justice. But here, the judge created a far more expansive limit on speech using vague terms like “participation.” 

The order also bans Trump from talking about Merchan’s family if those statements are made wit🍬h🅰 an “intent to interfere with the judge’s work,” though the ex-prez can comment on Merchan himself.

That’s beyond the scope allowed by the D🐠C Circuit Court, which ruled on Trump’s bid to nix a gag order in his DC case.

The DC court upheld prohibitions on commentary only about court staff and their families, not about the judge himself or his family.

Merchan’s expansion of that exposes his own bias, beca🅠use he is covering up his family’s political ties to the public. (His daughter’s firm ha♊s worked extensively with Democratic candidates.)

The judge is effectively saying he can withstand personal attacks by Trump and remain fair, but i𝓀f Trump were to mention his daughter’s political activity or any concerns about the judge’s neutrality, this would apparently affect the judge’s ability to “work.”

Really? If that’s the caseꦑ, why is Merchan still sitting on this case at all? 

More: Merchan’s gag order only gags Trump; the DC order gagged all participants equally.

Even more ridiculous, while Trump was slapped with sanctions for commenting on Mich𒉰ael Cohen’s dubious credibility, Cohen has run a media machine mockin🐼g Trump and rallying for his conviction, with nightly livestreams, even featuring a Trump impersonator.

Gag orders are not typically aimed at a criminal defendant’s r⛄ight to comment generally in the public.

Instead, they’re meant to keep specific information — witness and juror names, medical records, conf🎉idential government sources — private. 

Not only can Cohen run his mouth, the entire 🌸news industry can continue to run wall-to-wall coverage witℱh legal analysts like us tearing apart every aspect of the case, without input from Trump.

We haven’t been abl🐈e to find a single comparable case where everyone but the defendant was permitted to freely comment on the eꦰvidence.

There’s nothing ordinary about this gag order. 

Every day we get closer to the election, Trump’s interest in his right to speech is heighte🐼ned.

The opinions of the electorate are being shaped with꧟ constant media coverage merely months be🐲fore they cast their votes.

Trump repeatedly sought delay of the 🔜trial until after the election, but the prosecutor, Manhattan District Attorney Alvin Bragg, opposed that.

Holding a trial at the height of the campaign season means doing so when Trump’s Firꩵst Amen♒dment rights are at their peak. 

As the trial continues🍒, Trump and his spokespeople must be free to comment on it and its fairness without limitations other than those already found in the law.

The presidency may depend upon it. 

Andrew Cherkasky (@CherkaskyLaw) and Katie Cherkasky (@CherkaskyKatie) are military veterans, former federal prosecutors and current criminal defense attorneys. They are authors of the new book, “Woke Warriors.”