The Donald Trump Gag Order

By Brent E. Zepke, Esq.

Can a United States President be gagged; i.e.; prevented from speaking freely or disseminating information?

Undoubtedly more than a few opponents have had more than a passing thought on how to simply – to use street slang – cause their opponent to “shut up.” This has not been possible because all are aware that Americans have a guarantee of freedom of speech under the First Amendment to the U.S. Constitution.

However, Justice Samuel Alito, nominated by President George W. Bush, on December 9, 2024, declined to grant an emergency petition to end the gag order issued against President Elect Donald J. Trump.

The idea for a gag order against Mr. Trump began within days of his announcing that he was going to run a presidential campaign when Attorney General Merrick Garland named Jack Smith Special Counsel.

The timing and nature of Garland’s appointing Smith are reminders of the Russian way of “gagging” an opponent was to accuse him of a crime.

It should be noted that the previous Special Counsel – Robert Mueller – in search of a crime to accuse Donald Trump of committing failed.

The “How” and “Why” of the Gag Order

The “how” is that after Matthew Colangelo left Garland’s DOJ to help New York District Attorney Alvin Bragg staple together a state law about a non-disclosure agreement with Stephanie Clifford, aka Stormy Daniels, negotiated by convicted liar Michael Cohen, with a federal campaign law that he does not have the jurisdiction to try, and expand it into 34 criminal counts.

The “why” is that after D.A. Bragg’s claim that Trump’s “long history of making public and inflammatory remarks about participants in various judicial proceedings against him,” and claiming that Trump’s “audience is too large,” allowed Judge Juan Merchan to issue a gag order prohibiting Trump from making any public statements about witnesses, jurors, prosecutors, court staff, or members of their families.

Why Members of Their Families?

Judge Merchan’s daughter Loren Merchan not only worked for the Biden-Harris campaign but her firm, Authentic Campaigns, Inc., received tens of millions of dollars from Democrats. The New York Post says Loren helped Dems raise $93 million off her father’s case.

The result was that in April and May, while Biden-Harris campaign was free to include comments about Trumps being indicted: presidential candidate Trump had to remain silent.

May 30, 2024

Prior to the trial, there was at least a scintilla of a reason to protect the jurors, even this disappeared after the jury found Trump guilty on May 30, 2024.

Continuing the gag order laid bare that it was not imposed to protect witnesses, jurors, or prosecutors, but court staff, or members of their families, such as Loren Merchan. The result was in June and until July 21, while the Biden-Harris’s campaign was free to include comments about Trump’s case, Trump had to remain silent.

After July 21, 2024, while the Harris-Walz campaign was free to include comments about Trump’s case, presidential candidate Trump had to remain silent.

Until the sentencing, which Judge Merchan scheduled for November 26, 2024 (after the November 5 election), the judge retains jurisdiction and continued the gag order against presidential candidate Trump.

The Appeal

Legal pundits, including yours truly, strongly believe that the once this case is before a neutral court, it will be reversed.

Even though the rules provide that a defendant cannot appeal the case until after sentencing, which Judge Merchan scheduled for November 26, 2024, the trump team appealed the gag order.

In August 2024, the New York State Appeals Court rejected Trump’s attempt to have the gag order lifted.

The result was that in August, September, October, and early November, while Harris-Walz was free to comment about Trump’s case, presidential candidate Trump had to remain silent.

The Election

Post-election, while pundits were free to comment about Trump’s case, president Elect Trump had to remain silent.

On November 26, 2024, Judge Merchan declined to make the case ripe for appeal by sentencing Trump; he also kept jurisdiction by postponing, rather than dismissing, the case.

The Supreme Court

The emergency application filed by Joseph Nierman, a podcaster known as Good Lawgic, filed an emergency petition, which only requires one Justice to consider, with the U.S. Supreme Court asserting it was political speech by a candidate.

On December 9, Justice Samuel Alito declined the petition.

Lawgic has filed a broader writ with Justice Clarence Thomas, nominated by George H. Bush, who is circulating it within the Court, asserting “This issue affects every American. If the government has a basis to silence a defendant because ‘his audience is too large’ they can employ that logic not merely to the Trumps of the world with an X audience of 95m, but to your neighbor down the street who has an audience of 950 people.”

Now that the trial is over, is it time to assert the First Amendment?

The Consequences

Judge Merchan, by delaying the sentencing, or dismissing the case, is keeping it from being available to be overturned on appeal, to protect whom? Not the witnesses, jurors, or prosecutors, as the trial is over: Loren Merchan?

So far, the N.Y state judge’s gag order impacted our presidential election by limiting the speech of a candidate, but not his opponent’s, then a President Elect, and possibly a President of the United States.

What happened to Trump’s rights under the First Amendment?

What about our right to hear our president speak?

Tragically, depending on how the Supreme Court rules, all of us may be subject to the words of Joseph Nierman: “They can make that claim against any and every one of us. Historically, when granted that power, that is precisely what governments do.”