"He's in for a rude awakening": Experts say Trump daring judge with "clear violation" of gag order

Trump's "attempt to intimidate jurors" on Truth Social could go very badly for him, expert says

By Charles R. Davis

Deputy News Editor

Published April 18, 2024 9:49AM (EDT)

Former President Donald Trump departs after visiting a bodega in upper Manhattan, minutes after leaving Manhattan criminal court, in New York, NY on Tuesday, April 16, 2024.  (Jabin Botsford/The Washington Post via Getty Images)
Former President Donald Trump departs after visiting a bodega in upper Manhattan, minutes after leaving Manhattan criminal court, in New York, NY on Tuesday, April 16, 2024. (Jabin Botsford/The Washington Post via Getty Images)

Donald Trump is trying to be cute. Subject to a gag order that prohibits him from launching broadsides against prospective jurors, the former president took to the failing social network that he owns to – yes, you already know – attack prospective jurors.

Quoting Fox News anchor Jesse Waters, Trump posted Wednesday on Truth Social: “They are catching undercover Liberal Activists lying to the Judge in order to get on the Trump Jury.”

Well, no: In Trump’s Manhattan trial, dozens of prospective jurors have already been disqualified for potential bias, including the woman that Trump sought to intimidate on the second day of jury selection, earning him a rebuke from Judge Juan Merchan. Of those who have made the cut is a juror who admitted to watching Fox News (as well as MSNBC) and another who commented that Trump “speaks his mind,” per Talking Points Memo.

So Trump is sharing a false conspiracy theory, seemingly expressing a conviction that he will be found guilty of falsifying business records to conceal a hush payment to a porn star, Stormy Daniels, in order to influence the 2016 election – thus the need to start early with a “rigged” narrative. But his actions, in addition to being self-defeating, could get him in trouble well before the trial ends.

Trump is already subject to a gag order, one that prosecutors say he’s already violated with social media posts attacking Daniels and Michael Cohen, his former attorney who served a year in prison for his own role in the plot to break campaign finance law. That order expressly prohibits Trump from: “Making or directing others to make public statements about any prospective juror or juror in this criminal proceeding.”

Does sharing an ally’s attack, suggesting that those who will judge his guilt or innocence are all lying crypto-DNC staffers, actually violate that order? Yeah, former federal prosecutors say.

“On its face, Trump’s post violates the gag order,” Renato Mariotti, who worked for the U.S. Attorney’s Office in the Northern District of Illinois, posted on social media. “His attorneys will argue that he is just amplifying or ‘reposting’ someone else’s comment. But… Trump didn’t just retweet something. He typed it out word for word, essentially adopting Watters’ statement.”

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NYU Law Prof. Ryan Goodman, who worked for the Department of Defense’s general counsel under former President Barack Obama, told CNN that Trump unquestionably crossed a line.

“It’s a very, very clear violation of the gag order,” Goodman said Wednesday. It doesn’t even matter what Trump meant by it, he continued: jurors are off limits. “It’s not about intent. It’s not about making statements about jurors in order to interfere with a criminal proceeding, which is part of the gag order. He just cannot make public statements about them. He just did.”

Another CNN legal analyst, Jeffrey Toobin, agrees.

“It’s clearly – I think – an attempt to intimidate jurors and it is clearly barred by the gag order in this case,” Toobin commented. “Donald Trump doesn’t seem to realize he is now a criminal defendant and criminal defendants have different and lesser rights than ordinary citizens. They are not allowed to interfere in the trial process, especially when there is a gag order that specifically addresses attempts to intimidate jurors.”

When Trump sought to intimidate a juror in real life, the judge wasn’t having it. “I will not tolerate that,” Merchan said Tuesday. "I will not have any jurors intimidated in this courtroom. I want to make that crystal clear.”

Conservative attorney George Conway thinks Trump should pack an overnight bag. Jail time is a possibility, he told MSNBC, albeit unlikely just yet.

“I think before that happens, I think Merchan’s going to be very, very explicit about it, like, ‘Okay, that’s it, you’ve done this, this is it. Next time bring your toothbrush.”

With jury selection resuming Thursday, and weeks to go before a verdict, Merchan will now have to decide just how much the rules apply to a former president. A hearing on whether Trump violated the gag order with his previous social media posts in already scheduled for April 23.

“Trump thinks he’s too clever by half,” MSNBC legal analyst Katie Phang posted on social media. “He’s in for a rude awakening.”

By Charles R. Davis

Charles R. Davis is Salon's deputy news editor. His work has aired on public radio and been published by outlets such as The Guardian, The Daily Beast, The New Republic and Columbia Journalism Review.

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