On March 26, 2024, New York County Supreme Court Justice Juan Merchan, who is presiding over the criminal trial of former President Donald J. Trump, issued a restraining (i.e., “gag”) order limiting former President Trump from, among other things:
Making or directing others to make public statements about (1) counsel in the case other than the District Attorney, (2) members of the court’s staff and the District Attorney, or (3) the family members of any counsel or staff member, if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is likely to result.[1]
In making this order, the Court expressly considered the former President’s argument that as the “presumptive Republican nominee and leading candidate in the 2024 election he must have unfettered access to the voting public to respond to attacks from political opponents and to criticize these public figures.”[2]
Justice Merchan’s gag order finds that the former President’s “extrajudicial statements went far beyond defending himself against attacks by public figures,” and that the former President’s statements were “threatening, inflammatory, denigrating, and [that] the targets of his statements ranged from local and federal officials, court and court staff, prosecutors and staff assigned to the cases, and private individuals including grand jurors performing their civic duty,” which resulted in fear on the part of targeted individuals and increased security resources needed to protect certain individuals and family members thereof.[3]
This gag order is similar to orders issued by New York state Supreme Court Justice Arthur Engoron[4] and United States District Judge Tanya Chutkan.[5] Both prior orders were upheld on appeal.[6]
On March 27, 2024, notwithstanding the Court’s prior findings, the former President used social media to baselessly accuse Justice Merchan of bias vis-à-vis statements falsely attributed to Justice Merchan’s daughter.[7] That same day, New York State’s Office of Court Administration announced that the statements the former President was attributing to Justice Merchan’s daughter were investigated, and that the investigation concluded, “[t]he X, formerly Twitter, account being attributed to Judge Merchan’s daughter no longer belongs to her,” and that “it is not linked to her email address, nor has she posted under that screen name since she deleted the account. Rather, it represents the reconstitution, last April, and manipulation of an account she long ago abandoned.”[8]
[…]
In light of the foregoing, the New York City Bar Association expresses its unequivocal support for the way in which Justice Merchan is handling this issue. Justice Merchan’s actions in this proceeding are consistent with this state’s ethics rules and well settled national and international ethics requirements, by which the dignity and independence of the judiciary are maintained.[20]
The former President’s decision, on the eve of trial, to broadcast baseless claims that have previously been the subject of a motion for recusal—and which may be covered by the current gag order’s prohibition on statements made about family members of court staff—appear to be an attempt to derail the mechanics of the judicial process by casting aspersions against a non-party to the action for statements that an investigation determined were falsely attributed to her and serve only to harass the judge.[21]
The integrity of the judicial process rests upon the ability to restrict intimidating and harassing behavior that interferes with or otherwise threatens the judicial process in keeping with the fundamental principles of independence and the adherence to ethical obligations. We call on the former President and his attorneys to uphold the integrity of the judicial process.
