Donald Trump went on a social media tear leading up to his indictment this week, attacking the hush money probe he’s charged in and Manhattan District Attorney Alvin Bragg, warning of “death & destruction” and issuing a call to action: “PROTEST, TAKE OUR NATION BACK!”

It’s the kind of bombastic language the former president is known for online and on the campaign trail. But it’s also the type of inflammatory rhetoric and case-specific commentary that has landed defendants and their lawyers — including some of Trump’s associates — in trouble with judges.

Whether Trump could face an order restricting what he says about the Manhattan case or in any future federal or state prosecution isn’t clear. Lawyers who have dealt with court-imposed limits on speech, often referred to as gag orders, say the former president should be wary of giving judges cause for concern. But the experts also warn that courts are entering complicated First Amendment territory given Trump’s status as a presidential candidate.

“If Trump basically is trying to foment a riot, then I could see the court putting some limitations on him,” said Bruce Rogow, a former defense attorney for longtime Trump adviser Roger Stone, who was barred from posting on social media leading up to his 2019 trial. “If there’s a threat to the administration of justice, a threat to safety, then I think the court could impose gag orders.”

It didn’t take long for Trump to lash out at the judge assigned to the case in a post Friday morning on his Truth Social platform: “The Judge “assigned” to my Witch Hunt Case, a “Case” that has NEVER BEEN CHARGED BEFORE, HATES ME,” he wrote, referring to acting New York Supreme Court Justice Juan Merchan, who also presided over the case against Trump’s former chief financial officer Allen Weisselberg, who is currently in jail after pleading guilty to tax fraud charges last year.

Trump’s recent online vitriol included a since-deleted image showing a photo of the former president wielding a baseball bat next to a photo of Bragg. Trump attorney Joe Tacopina blamed the “ill-advised” post on one of Trump’s “social media people” during an appearance on “Meet the Press.”

His bombast already has had consequences in court. A federal judge in New York ruled that a trial set for next month in a civil case against Trump would involve a rare anonymous jury, since Trump’s comments had been “perceived by some as incitement to violence.”

Court-imposed restrictions on speech are supposed to be rare. The US Supreme Court has broadly held that courts cannot stop reporters from publishing information about criminal cases. But judges have more leeway to restrict what lawyers and defendants say, citing the need to ensure a fair trial and to avoid tainting the pool of potential jurors.

Katie Townsend, deputy executive director and legal director of the Reporters Committee for Freedom of the Press, said it’s more common for judges to impose these types of orders on lawyers than defendants. Pretrial publicity alone isn’t a reason to bar people from talking, she said, noting the countless examples of high-profile cases where judges were able to seat juries. Any speech restrictions are supposed to be “narrowly tailored” to honor First Amendment rights, she said.

If a judge did decide to limit what Trump, his attorneys, and prosecutors can say about a pending criminal case, Townsend said she’d expect that order to cover specific pieces of information. Judges have been reversed for casting too wide a net, she said – for instance, issuing orders that cover potential witnesses and victims as well as lawyers and defendants.

...continued

©2023 Bloomberg L.P. Visit bloomberg.com. Distributed by Tribune Content Agency, LLC.