'Circumstances Have Now Changed': Merchan Partially Lifts Gag Order on Trump

AP Photo/Rick Scuteri

They certainly have ... although not enough, apparently. While Judge Aileen Cannon offered a skeptical view of a gag-order demand from special counsel Jack Smith on Donald Trump earlier today, Judge Juan Merchan chose to keep his gag order in place. 


However, Merchan did narrow its scope to allow Trump to respond to public criticism, in some cases coming from people protected until now by the gag order:

Former President Donald Trump can now publicly speak about witnesses like Michael Cohen and Stormy Daniels who testified at his New York criminal trial, according to a court order on Tuesday that rolls back parts of a gag order Judge Juan Merchan imposed before the trial began.

Trump, however, cannot discuss any prosecutor, court staffer or their family members, as the latest order from Merchan upholds that portion of the gag order. That aspect of the gag order remains in effect at least until his sentencing, which is set for July 11, the latest ruling says.

The new order Tuesday also lifts the bar on public statements about jurors but notes disclosure of any personally identifying information of any juror is still prohibited.

Merchan rolled back parts of the order Tuesday, noting that “circumstances have now changed” following Trump’s conviction on 34 counts of falsifying business records last month.

No kidding. For one thing, the trial concluded almost a month ago with a conviction. The gag order should have expired at that time, let alone whether it should have been in place at all. Instead, Merchan dragged his feet for the next three weeks as Cohen and Daniels not only commented publicly about Trump but also commercially profited from their participation in the trial. That kept Trump from responding substantively (or otherwise) to their claims and arguments, as I noted almost three weeks earlier:


The trial concluded nearly a week ago. The jurors have gone home, as have the witnesses. Stormy Daniels has taken her act on the road, literally, and publicly advising Melania Trump to leave her husband now that he's a convict. Both Daniels and Alvin Bragg's star witness Michael Cohen have declared publicly that Donald Trump should get prison time, with Cohen demanding "solitary confinement" for the crime of falsely entering business records. 

With all of the witnesses making their case public, the only person who can't comment is ... Donald Trump himself. Judge Juan Merchan didn't lift the gag order Thursday after recording the guilty verdict, and has yet to respond to a defense motion to vacate it so Trump can respond to the public criticism. 

It took three weeks for Merchan to admit that "circumstances have now changed." Those are three weeks in a presidential campaign in which the President Joe Biden castigated Trump as "a convicted felon" while Merchan kept him gagged about the nature of the case, its witnesses, and the jury pool. Those three weeks of interference matter, and Merchan certainly knows that. 

He also knows how transparently political the gag order is. Merchan argued for its necessity out of safety concerns:

As for the remaining protections for prosecutors, court staffers and their families, Merchan says they must feel safe to do their jobs ahead of sentencing.

“Until sentence is imposed,” Merchan wrote, those covered by that part of his gag order “must continue to perform their lawful duties free from threats, intimidation, harassment, and harm.”


This is utter nonsense. If Trump himself issued "threats, intimidation, and harassment," then Merchan could deal with that directly without a gag order, especially through sentencing. If others issue threats etc, that's not Trump's responsibility and the DA and DoJ could pursue those cases as they arise. What other defendants get slapped with such gag orders in cases not involving national-security material, let alone candidates for elective office?

There is no reason why public officials should be protected from scorn and ridicule, and the very notion is itself a clear violation of the letter and the spirit of the First Amendment. It exists to allow Americans to criticize government and its officials.

This is nothing other than election interference, even in its more narrowed form. 

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David Strom 12:40 PM | July 23, 2024