What is a gag order and what happens when Trump violates it?

Now that Trump has been indicted in Manhattan (New York County) for alleged crimes relating to the falsification of business records, some experts have hypothesized that the judge overseeing the case will order a pre-trial gag order over the parties – including the prosecutors, the defense attorneys, and the famous defendant himself, ex-President Trump. This post discusses the legal issues surrounding a gag order and the practical implications of it in this case.

A gag order basically instructs a party to a litigation to refrain from speaking publicly about the case. A New York judge overseeing a criminal case has the power to issue a gag order over one or more of the parties to the case. Gag orders are relatively rare, however. They certainly are not done as a matter of routine. The Constitution guarantees the right to free speech, after all, and courts are generally loath to abridge those rights. However, gag orders may be necessary to protect other valuable rights under the Constitution, such as the right to a fair trial (contained in the Sixth Amendment of the Bill of Rights), as well as the all-important “true administration of justice”.

Sometimes defense attorneys ask courts to order prosecutors not to talk about their clients’ cases publicly for fear that they would prejudice any potential jurors. For example, the attorneys for Ghislaine Maxwell – convicted in Manhattan federal court of assisting notorious sex trafficker Jeffrey Epstein – contended that the federal prosecutors had tainted potential jurors by hosting press conferences in which they laid out the facts of their case. Ultimately that application for a gag order was denied, but the federal judge did admonish the attorneys to adhere to the rules of professional conduct for lawyers, which generally prohibits attempts to unfairly influence juries (or potential juries) outside of the courtroom. After all, the paramount rule of trials was explained by Justice Holmes in 1907: “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether private talk or public print.” Patterson v. Colorado, 205 U.S. 454, 462 (1907).

Sometimes defense attorneys work the media circuit and give pre-trial interviews to the press to try to influence potential jurors before their clients proceed to trial. Trump’s attorneys appear to be doing quite a bit of that lately. In one case, the attorneys for Joey Buttafuoco were gagged by a judge because of their admitted attempts to sway the jury pool with statements to the media. People v. Buttafuoco, 158 Misc. 2d 174 (County Court, Nassau 1993). That gag order was especially easy to justify in light of the Code of Professional Responsibility, DR 7-107 (22 NYCRR 1200.38) relating to trial publicity, which prohibits the sort of behavior done by the attorneys.

Prosecutors do not have a right to a fair trial, per se, because that right stems from the U.S. Constitution and protects individuals accused of crimes. One might think, then, that a defendant cannot be gagged. After all, the purpose of a gag order – normally – is to protect a defendant’s right to a fair trial. However, a gag order can be imposed upon a defendant where the defendant makes deliberate attempts to undermine the “true administration of justice” by tampering with the jury pool and making extrajudicial statements. Already, Mr. Trump has made numerous postings in social media (Truth Social etc) about the alleged bias of the prosecutor and the trial judge, and slammed the charges as being baseless and politically motivated, among other things. Mr. Trump might argue that his statements about the case relate to his campaign for president. While that may be true in part, there is no question that he hopes to persuade potential jurors of his innocence by making these claims about the case. In the least, he has to be aware of the fact that his public statements about the case – which immediately become the subject of numerous national media stores – could taint the jury pool in Manhattan. So, a gag order seems likely in this case. In short, if Mr. Trump wants to speak to the jurors in his case, he will have to take the oath and subject himself to cross-examination.

Given what we know of Mr. Trump’s personality and character, it seems inevitable that he would violate such a gag order and speak publicly about the charges. Notwithstanding his general inclination to talk about everything that crosses his mind, it would actually be difficult to run for president without discussing pending criminal charges against oneself. So, then, it is worth asking what would happen if Mr. Trump were to violate the gag order.

Violations of gag orders are prosecuted by courts pursuant to N.Y. Judiciary Law Section 750. A court would have to conduct an evidentiary hearing on the issue of the violation of the court order before rendering a decision. The decision would be made by the court and not a jury. The maximum jail punishment for a violation would be thirty days at Rikers Island. There could also be a fine up to $1000.00.

Courts in the past have considered whether judges who have been personally attacked or criticized by a litigant outside of the courtroom can be permitted to preside over the subsequent contempt proceeding. The Supreme Court has concluded that “[a] constitutional rule which disqualifies a Judge solely based upon criticism of rulings and disobedience to court orders during a trial is excessive and unwarranted.” In re Hirschfield, 184 Misc.2d 119, 122 (N.Y. County Sup. Ct. 1999) It should not be assumed “that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority or with highly charged arguments about the soundness of their decisions.” Ungar v. Sarafite, 376 U.S. 575, 584 (1964). But a judge might be disqualified from presiding over a contempt hearing on a gag order where the judge becomes so “embroiled in… controversy” that he should recuse himself based upon the “likelihood of bias.” Taylor v. Hayes, 418 U.S. 488, 501 (194).

Prosecutors might request a gag order at Mr. Trump’s arraignment on April 4. The court may decline to issue such an order at this point, and may instead admonish the parties not to speak publicly about the case. But if Mr. Trump and his attorneyscontinue to wage a public media campaign about the case, then the judge will likely be inclined to grant a gag order. One doubts that Mr. Trump could possibly abide by such an order, or that he would. In that case, it seems altogether plausible that we will have a violation hearing on a gag order with the very real possibility of Mr. Trump being incarcerated pre-trial for a violation of a gag order. But that of course remains to be seen.

Matthew Galluzzo is a criminal defense attorney in New York City and former Assistant D.A. in Manhattan. He has appeared as a legal commentator on CNN, MSNBC, Fox, ABC, Dateline, BBC, and other television news programs throughout the world. He has been quoted by newspapers including the New York Times, the Wall Street Journal, and the Economist, among others. Fluent in French, Mr. Galluzzo has also been interviewed countless times in French by European and Canadian news channels. For his services to the French government and French citizens facing criminal charges, Mr. Galluzzo was recently named a knight in the French National Order of Merit.