"It can lead to additional charges": Experts say Trump's plan to "rough up" DA could badly backfire

"The precedent of Jan. 6th would probably be uppermost in the court's mind" as Trump risks gag order, expert says

By Areeba Shah

Staff Writer

Published April 3, 2023 3:07PM (EDT)

US President Donald Trump speaks during a campaign rally at the BOK Center on June 20, 2020 in Tulsa, Oklahoma. (NICHOLAS KAMM/AFP via Getty Images)
US President Donald Trump speaks during a campaign rally at the BOK Center on June 20, 2020 in Tulsa, Oklahoma. (NICHOLAS KAMM/AFP via Getty Images)

Donald Trump is reportedly planning to ramp up his attacks on Manhattan District Attorney Alvin Bragg after he became the first former president to be criminally indicted last week — but legal experts say it could backfire.

Trump was indicted by a grand jury last week on more than 30 counts related to hush money payments made to adult film star Stormy Daniels during the 2016 election by his former lawyer Michael Cohen, according to multiple reports. Over the weekend, the former president, who has denied any wrongdoing and described the investigation as a "witch hunt", told people close to him that it was time to politically "rough 'em up," according to the Guardian

If Trump's attacks against Bragg continue, he could provoke a gag order, which would restrict his ability to talk about his case out of court, said Kevin O'Brien, a former federal prosecutor and white-collar lawyer at Ford O'Brien Landy LLP.

"The precedent of January 6th would probably be uppermost in the court's mind, so Trump does not have the luxury of a clean slate," O'Brien told Salon. "Having said that, most judges would be extremely reluctant to impose a gag order on a criminal defendant, which would fly in the face of the First Amendment."

In the weeks prior to his indictment, the former president blasted the Manhattan district attorney's office on Truth Social, calling it "corrupt & highly political". He called Bragg a "Soros backed animal" and encouraged his supporters to "protest" his widely anticipated arrest. 

In one post, he even warned of "death and destruction" if he was indicted. Soon after, Bragg received a death threat letter addressed to him containing suspicious powder with the letter reportedly saying: "ALVIN: I AM GOING TO KILL YOU!!!!!!!!!!!!!" 

If Trump's rhetoric continues to escalate and cross a line with issuing direct threats, he could face additional criminal charges, said William "Widge" Devaney, former assistant U.S. attorney in the District of New Jersey.

"It's quite another thing when you start to make veiled threats against the district attorney's office, against law enforcement officers, against the judge," Devaney said. "That's where the line crosses in terms of whether it can lead to additional charges."

But if Trump continues with name-calling or making "political statements," little may be done to stop him, Devaney added, pointing out that even if the judge issued a gag order against Trump, "there are hundreds of people out there who are going to speak for Trump".

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Some of these people include members of Congress, like Rep. Jim Jordan, R-Ohio, who recently vowed to defund federal law enforcement agencies in the wake of Trump's indictment.

In an interview with Fox News on Sunday, the House Judiciary chairman said that Republicans will look into defunding the agencies in charge of investigating Trump.

"We control the power of the purse, and we're going to have to look at the appropriation process and limit funds going to some of these agencies, particularly the ones who are engaged in the most egregious behavior," Jordan said when asked about what his committee can do against the alleged "weaponization of government."

House Speaker Kevin McCarthy, R-Calif., has also called Bragg's investigation into the former president "an outrageous abuse of power by a radical D.A. who lets violent criminals walk as he pursues political vengeance against President Trump." 

After Trump's indictment, he tweeted that the "American people will not tolerate this injustice," and warned that the "House of Representatives will hold Alvin Bragg and his unprecedented abuse of power to account."

In the meantime, Trump's tone against New York State Supreme Court Justice Juan Merchan, the judge handling the case, has grown more aggressive. 

He claimed that Merchan "hates" him and that the judge "railroaded" Trump's former chief financial officer into pleading guilty in a tax fraud case in a post on Truth Social last week.

Last year, Merchan oversaw the criminal tax fraud case against Trump's company, in which former Trump Organization chief financial officer Allen Weisselberg pleaded guilty and was sentenced to five months in the Rikers Island jail.

Trump is expected to appear in a Manhattan courtroom on Tuesday for his arraignment.

If Trump's comments lead "into any sort of obstruction of the proceeding or assault against one of the officials," Devaney said, "then that could certainly change the complexion of the entire matter."

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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Alvin Bragg Donald Trump Furthering Michael Cohen Politics Stormy Daniels