With some breaking news, Judge Mershon has just sided with
District Attorney Bragg.
In a ruling minutes ago,
he expanded the gag order to include family members of
the court
and of the DA's office.
Joining me now here at the table is Mary McCourt.
She is the former acting Assistant Attorney General for National
Security at the Justice Department.
Also with us is former federal prosecutor and my buddy
Glenn Kirschner.
So Glenn, let me start with you.
The the DA has just come back with this ruling
moments ago.
Tell us. I know he's been folks.
He's been scouring over the paper here.
Tell us what you find in this.
What should we need to know about what the judge
has done?
So Michael, I would say predictably,
Judge Juan Mershon expanded the gag order to include family
members of the judge,
of the court staff, of the
prosecutor's office. That's wonderful. Donald Trump is laboring under,
you know, a hat trick of shut up because there
are three gag orders that have been in place overtime.
Judge Chutkin in the DC federal prosecution,
Judge N Goran in the New York civil fraud trial,
and now Judge Marshawn in the New York.
I don't call it a hush money case.
It's the 2016 election interference case that includes hush money
payments that were then covered up with false business records.
Has it done any good?
Has it helped? You just said a minute ago,
Donald Trump is putting his trial on trials.
He's putting the criminal justice system to the test.
And I think the system is failing.
And the reason I say that is because you just
read,
in part the first sentence from the motion that was
filed by District Attorney Bragg,
and it reads, Defendants, dangerous,
violent and reprehensible rhetoric fundamentally threatens the integrity of these
proceedings and is intended to intimidate witnesses and trial participants
alike,
including this court. To this old prosecutor,
the only sentence that makes sense coming after that assertion
is therefore the people are moving for pretrial detention.
I'm not saying, listen, we have 4 criminal cases across
4 jurisdictions.
There are different rules in every jurisdiction.
But the fact that no judge and no prosecutor has
stepped up to actually put a stop to Trump's dangerous
rhetoric is a real problem.
And Mary, that's where Glenn put his finger on the
pulse of what really irritates the heck out of me
about all of this.
Because that sentence should follow the beginning of that.
How what's your take on the judges expansion of this
gag order and how do you see other judges in
other trials that are before that?
Trump is before sort of assessing and dealing with this
ruling.
I think the reason he expanded the gag order was
less about his daughter and more about the message that
Trump gets if he doesn't expand it,
right. And that more about the message that potential jurors
get if he doesn't expand it.
I think he is now very worried.
And this is something that the DA raised in their
papers,
very worried that people are going to be extremely reluctant
to serve as jurors,
to have any witnesses are going to start to,
you know, become reluctant and maybe even be nervous about
telling the truth on the stand because they feel like
they're targeted jurors,
witnesses, trial participants, as well as their families.
So to me, this was the judge saying,
look, I've got to, I've got to take this step
here to send a message that the administration of justice
will not be
impinged by this conduct of Donald Trump.
And he also says we're not in a David and
Goliath situation here where the government is all powerful because
Trump himself,
you know, has a bullet pulpit about as,
as you know, as substantial as any,
Right. So let's pick up on on that bully pulpit
idea.
Because what Donald Trump's lawyers have argued is that he
has
the constitutional protection of free speech to say these things
to go after
Mershon's daughter. How does that factor into this particular ruling?
And is that an element that really prevents what Glenn
says should happen next from happening?
Well, there's no question that defendants have First Amendment rights.
But those rights can be constrained when you are in
a courtroom facing a trial in criminal case and and
in a civil case.
And the Supreme Court's been very clear about that.
That is the obligation of the judge to,
you know, ensure that the,
the defendants behaviour won't impact the administration of justice and
that could be through things like gag orders.
It's through other restraints too,
right, Because the point is you have to ensure that
the defendant gets a fair trial,
but that also means the public and the government get
a fair trial as well.
It works both ways. And I think one of the
things that Glenn has pointed out
and that we've talked about,
you know, in other shows is that the judges,
even when they've issued these gag orders,
Judge Chuck and Judge Marshawn,
Judge and Goran, well, that was a civil case.
So. But in the two criminal cases,
they did not actually make those part of the conditions
of release and required Mr.
Trump to sign that he understands his conditions have now
been expanded and if he violates them,
his release can be revoked.
Instead, the remedies here are things like contempt of court
for violating court order.
Now that can result in time in jail.
So it's not toothless, but it's
I think for those of us former prosecutors,
it's unusual that these, these restrictions on speech were not
just incorporated into the conditions of release.
So. So Glenn, Donald Trump will violate
this gag order in three to
what I mean, So when that happens,
what happens? I mean because Mary points out that you
don't have,
you know, the defendant sort of signing saying,
OK, yeah, I acknowledge all this and this can happen
to me.
How do you see this playing out when that happens?
Because you know it will.
Financial fines. And of course,
who cares, right? There were some
minor financial fines put in place by Judge Angoran in
the civil case and when he violated the gag order.
I agree with Mary. I mean,
in theory you can be held in contempt,
you can be confined for a a brief period of
time.
But I go back to the fundamentals of of the
law.
The law ordinarily says when you're a defendant on pretrial
release,
particularly in serious felony cases.
And Donald Trump has for serious felony cases,
if there's clear and convincing evidence that you pose a
danger to the community or even one person in the
community,
you can be detained pending trial to neutralize that threat.
Can I, can I just push on that point?
You pose a danger to the community
people when they hear that they're thinking,
oh, you know, this guy's a violent actor.
He's someone who has harmed someone is now being prosecuted.
This is in one sense,
you know, a situation where there's no physical harm.
It's just Donald Trump running his mouth and saying crazy
stuff
that may or may not result with some idiot out
there picking up,
you know, some action. How,
how does that get squared by the court in,
in a situation like this,
where that language, at least intuitively to someone who's,
you know, listening to it from outside of the system,
would hear, well, that's that would refer to someone who's
raped somebody or shot somebody or done some physical harm
to someone Yet.
So let me rely on what one of the appellate
court judges said not two blocks from here during the
gag order argument to the DC Federal Circuit Court of
Appeals when Donald Trump's lawyer made that point.
Wait a minute, he's not responsible for what his supporters
do after he posts something And the judge said
wait a minute, there is a clear pattern here.
Donald Trump posts the name of a witness and
threats ensue. He knows this.
He can't disavow it. It's what he intends by posting
the names and photos.
Not to mention he was seen holding a baseball bat
mid swing at the
prosecutor's head. So let's not say,
well, these aren't crimes of violence.
Donald Trump is all about violence.
He's just using his words to accomplish his ends.
And so mayor, what does that mean for
average? You know, Joe and Jane out there who is
a potential juror in one of these trials and they're
seeing this,
they're hearing this. And I really get what Glynn is
saying about the judge sort of anticipating that and say,
all right, everything's off limits now.
And family, court clerks, all of that.
Does that really give some solace to A to a
potential jury
pool or should I put something else in my coffee?
So I mean that's what Judge Marshawn is trying to
do and the end of his order tonight warns the
defendant.
The defendant is hereby warned that any violation of this
order will result in sanctions under any sites of the
law which is a contempt sanctions.
What he's trying to do is send a message is
I do take this seriously.
Don't be worried, John, Joe and Jane,
potential jurors, because we will take action.
But you know, I don't know if that's good enough
because we'll see what Donald Trump does.
And you know, to your point in the opening about
violence and to
Glenn's point, I think what we are on right now
too is just a
slow or not so slow development of,
you know, a long range incitement to violence,
Right. Because we have the photos of President Biden and
the bet,
you know, hog tied and kidnapping in the back of
a truck.
We have these incendiary, violent remarks about witnesses and prosecutors
and
judges. And this is all about enduring,
you know, getting his base ready to take action.
And, you know, unfortunately, our law,
you know, doesn't protect incitement to imminent violence.
But that violence, he wants it to come.
That's why he's doing it.
And I think there's a high likelihood it will come.
And imminence is really hard to judge with a man
like Donald Trump.
All right. Ray McCord, Glenn Kirschner.
Thank you guys very, very much for being here at
the moment.
It all pops. Really appreciate it.