Trump Prosecutors Are Learning To Hunt In Packs

Clever lawyers!

Donald Trump is in a boatload of trouble.

He’s facing four criminal indictments, half a billion dollars in civil verdicts, and tens of millions of dollars in legal bills. And on top of all that, his tormenters are beginning to copy each other’s homework.

Put simply, Trump is making the same bullshit arguments in so many different courts at once that prosecutors are now recycling each other’s rebuttals, citing prior rulings as precedent, and adapting their strategies on the fly.

Yesterday’s motion for a gag order in the false business records case is a perfect example.

In Manhattan, District Attorney Alvin Bragg is prosecuting Trump for creating false business records to conceal a $130,000 hush payment to adult film actress Stormy Daniels. Trump’s then-lawyer Michael Cohen fronted the cash in 2016 and was later reimbursed through a series of monthly checks Trump recorded as legal fees. For various reasons, most legal commentators agree that this is the weakest of the four criminal prosecutions. But, with the Fulton County case in chaos and the federal trials in Florida and DC either implicitly or explicitly off the calendar, the New York charges look like the only ones which will definitely be heard before the election. And on February 15, Justice Juan Merchan made it official, rejecting Trump’s motions to dismiss the case and confirming that jury selection will begin on March 25.

Trump has lately directed most of his vitriol elsewhere, blasting out hundreds of social media posts attacking prosecutors and judges in DC, as well as the participants in the E. Jean Carroll defamation cases and the New York civil fraud trial. But last spring, before he got distracted, Trump burped out dozens of incendiary posts calling DA Bragg a “racist,” and a “Soros backed” “thug,” including one that appeared to show Trump swinging a baseball bat at the prosecutor’s head.

Anticipating a firehose of hate as Trump refocuses on the New York criminal case, Bragg asked Justice Merchan to impose a limited gag order barring the former president from “making or directing others to make public statements” regarding: witnesses in the case; the prosecutorial team and their family members, with the exception of Bragg himself; court staff and their family members; and the jurors.

This closely tracks the langauge endorsed by the DC Circuit, which narrowed but ultimately upheld the order Judge Tanya Chutkan imposed in the election interference case. That ruling, while not technically precedential, has functionally disposed of Trump’s argument that gagging him during a presidential campaign violates the First Amendment.

And it’s not just the DC Circuit supplying Bragg with a template.

The DA quotes Judge Lewis Kaplan, who presided over the Carroll defamation cases as well as Judge Chutkan in DC; the two separately agreed that Trump endangers lawyers, witnesses, jurors, and court staff when he sets his pitchfork mob on them:

Defendant has a longstanding and perhaps singular history of using social media, speeches, rallies, and other public statements to attack individuals that he considers to be adversaries, including “courts, judges, various law enforcement officials and other public officials, and even individual jurors in other matters.” Carroll v. Trump, 663 F. Supp. 3d 380, 382 & n.7 (S.D.N.Y. 2023). Further, “when Defendant has publicly attacked individuals, . . . those individuals are consequently threatened and harassed.” United States v. Trump, No. 23-cr-257 (TSC), 2023 WL 6818589, at *1 (D.D.C. Oct. 17, 2023).

This will come as no surprise to Justice Merchan, who presided over the tax evasion case involving the Trump Organization and its longtime CFO, Allen Weisselberg. After Trump targeted the judge and his daughter, who works as a consultant for Democratic groups, the family received “dozens” of death threats.

But perhaps most instructive is the experience of Justice Arthur Engoron, Justice Merchan’s colleague on the Manhattan Supreme Court.

Justice Engoron imposed the first gag order on Trump after the former president posted a picture of the judge’s law clerk and falsely described her as Senator Chuck Schumer’s “girlfriend.” When Trump appealed, the court’s Department of Public Safety (DPS) submitted an affidavit detailing an avalanche of threats against the judge and the clerk, necessitating beefed-up security measures in coordination with the FBI and the Department of Homeland Security.

The affidavit also acknowledged that judges and prosecutors have a strong institutional bias against speaking publicly when they and their staffs are threatened.

“Judges who receive threats are advised to not make public statements discussing the threats or any security measures that may be in place because doing so could compromise the security measures put in place to protect them and those around them,” the DPS officer wrote.

This tracks with Special Counsel Jack Smith’s motion for a gag order in DC, in which he barely alluded to threats against himself and his deputies. Instead he relied on threats to third parties previously targeted by the former president, such as election officials in Georgia and Atlanta poll workers Ruby Freeman and Shaye Moss. But that omission allowed Trump’s lawyers to claim that the prosecution had not presented “one shred of evidence” that Trump’s social media posts provoked real-world harm in the instant case. In reality, just a month before the gag request, a Texas woman was indicted for leaving a voicemail for Judge Chutkan saying “Hey you stupid slave n----- … You are in our sights, we want to kill you.” Because the taboo is strong, that threat was barely mentioned before Judge Chutkan, and only became an issue when Trump appealed to the Circuit Court.

But you can only shatter a norm once.

Trump has now been subjected to two gag orders, and so a third restraint is barely newsworthy. And, having watched the First Judicial Department in New York and the DC Circuit reinstate the gags after being confronted with gruesome threats to court staff, Bragg placed harassment by Trump’s supporters front and center in his motion.

The DA says that he was deluged with violent threats last year before Trump wandered off to abuse E. Jean Carroll, Fulton County DA Fani Willis, and New York Attorney General Letitia James. His office received two envelopes containing white powder resembling anthrax, and a Utah man named Craig Robertson is under indictment for making public threats to various Democratic officials, including Bragg.

“I'll be waiting in the courthouse parking garage with my suppressed Smith & Wesson M&P 9mm to smoke a radical fool prosecutor that should never have been elected,” Robertson wrote on social media, fantasizing in gruesome detail about watching Bragg die after putting “a nice hole in his forehead with my 9mm.”

Unlike the DC Circuit’s order, Bragg’s proposed gag would protect jurors from potential intimidation by the former president, along with the court and prosecutors. Luckily — sort of — Trump has demonstrated his propensity to go after jurors in multiple jurisdictions, so Bragg has plenty of material to work with here, too.

When Roger Stone was convicted of obstruction and witness tampering, Trump attacked the jury foreperson, calling her “a very dominant person” (he meant Black), and unleashing a torrent of abuse and threats. And grand jurors in Fulton County were doxxed after Trump screamed on Truth Social, “WOULD SOMEONE PLEASE TELL THE FULTON COUNTY GRAND JURY THAT I DID NOT TAMPER WITH THE ELECTION.” Bragg also noted that Judge Kaplan made the Carroll jurors anonymous and urged them for their own safety never to tell anyone that they’d served on the panel.

Because this is functionally a rerun of the fight in DC, Bragg is similarly ready to head Trump off at the pass when he argues that the court must use the “least restrictive” means of protecting the integrity of the proceeding, and thus the case should be postponed until after the election or moved to a less Democratic venue.

Change of venue and delay are also not viable alternatives. Defendant’s “rhetoric has national reach,” meaning that his speech will pose the same threat to trial participants “regardless of locale.” Trump, 88 F.4th at 1017-18; see Gentile, 501 U.S. at 1075 (recognizing that “a change of venue may not suffice to undo the effects of [extrajudicial] statements”). And delaying the trial—in effect, granting defendant the relief that this Court has now denied many times—would “create perverse incentives” and “unreasonably burden the judicial process.” Id. at 1018. It would also be ineffectual, since allowing defendant yet more time to engage in public attacks would impair the integrity of this trial more, not less.

And while Bragg’s motion is a perfect distillation, all of Trump’s criminal cases are beginning to overlap and echo each other.

Last week in the Florida documents case, Trump essentially refiled the motion to dismiss on grounds of presidential immunity which was already rejected by the DC Circuit in the election interference prosecution. Trump petitioned the Supreme Court for review, but in the meantime his lawyers have taken the bizarre position that Judge Aileen Cannon should simply disregard the DC Circuit’s ruling and dismiss the Florida indictment, rather than wait for the highest Court in the land to rule. In reality, SCOTUS’s ruling in the DC case will be dispositive in Florida as well.

Even the judges are learning to work together, with Justice Merchan reaching out to Judge Chutkan to coordinate their calendars, much to Trump’s lawyers’ feigned indignation. And while Trump spent a year successfully playing the various courts off each other in an attempt to push all his trials off until after the election, at least one judge has decided to stop playing along.

“You don’t have a trial date in Georgia. You don’t have a trial date in Florida. Stop interrupting me please!” Justice Merchan chastised Trump’s lawyers at the February 15 hearing, adding that, if he’d let Trump have his way, “we would have wound up adjourning our case only to see the DC case not start on March 4.”

That’s the problem with acting a fool in a dozen different jurisdictions at once. Sooner or later, people have seen every play in your book and figured out how to shut them all down before you get to the end zone.

People v. Trump [Docket via Just Security]