Left: Judge Juan Merchan poses for a picture in his chambers in New York, Thursday, March 14, 2024. Merchan is presiding over Donald Trump’s hush money case in New York (AP Photo/Seth Wenig). Right: FILE – Former President Donald Trump is escorted to a courtroom, April 4, 2023, in New York (AP Photo/Mary Altaffer, File).
The judge in the Manhattan hush-money trial of Donald Trump on Friday wanted to make one point: the gag order in the case in no way barred the former president from testifying in his own defense, despite the criminal defendant’s remarks outside the courtroom one day earlier. But will he notice the adjudicated serial contemnor’s latest limits-pushing Truth Social post?
On Thursday, Trump, flanked by his defense attorney Todd Blanche, stated, “I’m not allowed to testify because of an unconstitutional gag order,” turning to Blanche for approval. It was clear from the start that Acting New York Supreme Court Justice Juan Merchan’s expanded gag order applied to Trump’s out-of-court statements about witnesses, jurors, the judge’s daughter and Manhattan DA Alvin Bragg’s (D) family, not to Trump’s right to testify in his own defense inside the courtroom. But the judge took it upon himself Friday to clear up any “misunderstanding” the defense might have about this issue.
Justice Merchan addresses Trump’s comments yesterday at his end-of-day press conference, falsely claiming he’s gagged from testifying.
“I want to stress to Mr. Trump: You have an absolute right to testify at trial.”
The Constitution guarantees that right, he emphasizes.
— Adam Klasfeld (@KlasfeldReports) May 3, 2024
“I want to stress to Mr. Trump: You have an absolute right to testify at trial,” Merchan said, according to several courtroom accounts of the judge’s remarks.
While it’s unclear if Trump was simply mistaken or was, perhaps, blaming the judge in advance for an eventual defense decision not to testify in the case, it’s also unclear whether he’s baiting the judge to throw him in jail for running afoul of the gag order rules that actually do apply.
As recently as three days ago, Merchan held Trump in criminal contempt for violating the gag order nine times, both in posts on his Truth Social account and on his campaign website. Trump was ordered to remove the posts, and he took them down. He was fined $9,000 and warned that “jail may be a necessary punishment” for additional violations.
Importantly, Merchan discussed the issue of whether Trump’s Truth Social reposts equal endorsements of the content he’s sharing and, therefore, amount to the former president’s personal statements.
“Addressing first what has been referred to as “reposts,” Exhibits 1, 4, 5, 6, 7, 8 and 9, this Court finds that a repost, whether with or without commentary by the Defendant, is in fact a statement of the Defendant,” his decision said, before elaborating: “Both the Truth Social account and the official campaign website, exclusively represent the opinions and views of the Defendant, and neither is an open forum for others to post their own content. Defendant curated the posts at issue and then took the necessary steps to publish the posts on his Truth Social account and on his campaign website. In doing so, he endorsed the posts with one purpose in mind – to maximize viewership and to communicate his stamp of approval.”
Yet two days after receiving that warning, Trump posted a link, without comment, to a video amplifying criticism of the judge’s daughter, Loren Merchan, and her work as a consultant for Democrats while at Authentic Campaigns.
By that logic, then, would the May 2 Truth Social post of a Rumble video featuring Trump ally Rudy Giuliani’s son Andrew Giuliani slamming the judge’s daughter cross the line?
The gag order bars Trump from “[m]aking 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 staff’s work in this criminal case, or with the knowledge that such interference is likely to result.” [emphasis ours].
Near the start of the video that Trump shared, which was about the former president’s supporters gathered outside the Manhattan courthouse, Steve Bannon asked Andrew Giuliani for his thoughts on Merchan threatening to throw Trump in jail for future gag order violations.
“Yeah, I mean, he’s fined him for 9 times of this, and he made him actually remove this. He’s making him remove it from his social media. So talk about violating his First Amendment rights on this,” the younger Giuliani answered, before criticizing the judge’s daughter without naming her. “And you got to remember, Steve, going back to all this, the gag order that he is violating, according to the judge, that Donald Trump is violating, is just pointing out the fact that the judge’s daughter has profited to the tune of $90 million. That’s right. Over $90 million from Adam Schiff, Kamala Harris, and other leftists.”
When Merchan updated the gag order in April, he rejected the claim made by Trump’s defense that it was “necessary and appropriate in the current environment” to post photos of the jurist’s daughter online in service of advancing the argument her activities showed that a) the judge’s impartiality could reasonably be questioned and b) that he should recuse himself.