‘The threat is very real’: Trump’s defense of his attacks is rejected

For all of his complaints about the timing and his insistence that his various indictments and trials are an effort to block his return to the White House, Donald Trump has benefited enormously from the overlap of his campaign and his legal travails, and he continues to do so.

The most obvious way this is true is that his reelection to the presidency would immediately kneecap any ongoing federal probes into his actions even as it raised unique, difficult questions in his state-level fights. It’s also the case that his initial indictment by a Manhattan grand jury a year ago boosted his position in the Republican primary field, putting him on the path to renomination in the first place.

He and his attorneys also use the campaign as a broad cover for his rhetoric attacking legal officials and their families. Last week, Manhattan District Attorney Alvin Bragg requested that an existing gag order limiting Trump’s comments about his trial in the city be expanded to cover family members of those involved in the case — including the daughter of New York State Supreme Court Justice Juan Merchan. The Trump team’s rebuttal, like its objection to the initial gag order, centered on the idea that it was inappropriate to limit the speech of a candidate for the presidency.

The original order is “already an unlawful prior restraint that improperly restricts campaign advocacy by the presumptive Republican nominee and leading candidate in the 2024 presidential election,” Trump’s attorneys wrote in response to Bragg’s request for an expanded prohibition. They argued a bit later that “President Trump must be permitted to speak on these issues in a manner that is consistent with his position as the leading presidential candidate and his defense, which is not intended to materially interfere with these proceedings or cause harm to anyone.”

That last point is important: The order bars comments “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 highly likely to result.” Trump’s team argues that his comments were simply political rhetoric offered in opposition to the trial and, specifically, that the judge’s daughter works in political advocacy.

Neither Bragg nor the judge was buying it.

Bragg noted in his original motion that “multiple potential witnesses have already expressed grave concerns … about their own safety and that of their family members should they appear as witnesses against defendant.” (The district attorney also pointed out in his most recent filing that some of the attacks on Merchan’s daughter were erroneous. “The facts are beside the point for this defendant,” he wrote.)

“Family members of trial participants must be strictly off-limits,” Bragg’s filing argues. “Defendant’s insistence to the contrary bespeaks a dangerous sense of entitlement to instigate fear and even physical harm to the loved ones of those he sees in the courtroom.”

Merchan accepted that argument.

“The threat is very real,” he wrote in his ruling expanding the gag order. “Admonitions are not enough, nor is reliance on self-restraint. The average observer, must now, after hearing Defendant’s recent attacks, draw the conclusion that if they become involved in these proceedings, even tangentially, they should worry not only for themselves, but for their loved ones as well.”

The emphasis was the judge’s. He went on to note that the Trump team’s defense of the comments and social media posts targeting his daughter were “farcical.”

All these machinations, though, exist within the broader context of Trump’s political fight. It is not credible that he doesn’t understand the potential chilling effect on witnesses and the court that stem from his attacks, despite his attorneys’ insistences. But while this legal tussling would be a central issue for most defendants, it remains only ancillary for Trump. In fact, the fight with the judge is useful to his political outcomes, reinforcing his rhetoric that he is being unfairly targeted by political opponents.

“I just was informed that another corrupt New York Judge, Juan Merchan, GAGGED me so that I can not talk about the corruption and conflicts taking place in his courtroom with respect to a case that everyone, including the D.A., felt should never have been brought,” he wrote on social media soon after the gag order was expanded. “They can talk about me, but I can’t talk about them??? That sounds fair, doesn’t it? This Judge should be recused, and the case should be thrown out. There has virtually never been a more conflicted judge than this one. ELECTION INTERFERENCE at its worst!”

(The “They can talk about me” line is probably centered on his legal team’s long-shot effort to cast an interview the judge gave to the Associated Press as his having discussed the case publicly. In his ruling, Merchan described Trump’s legal team’s arguments as “disingenuous and not rational.”)

You see how this works, though. Trump’s focus on Merchan’s daughter is probably less about intimidating her father or other witnesses than that it allows him to cast Merchan as a political actor by association and to claim that his failure to recuse indicates a bias against Trump. (A committee on judicial ethics backed Merchan’s service on the case last year.) Those are central arguments aimed at political benefit, not a legal one.

This is expressed by Trump’s attorneys. They frame his commentary as centrally if not essentially political, insisting that his audience has a “right to listen to President Trump’s campaign speech” and citing a 1987 case, United States v. Ford, in which a candidate was allowed to attack his political opponents, to argue that the existing gag order violates Trump’s rights “in a way that implicates federalism concerns.”

Those attorneys sit at the nexus of Trump’s two overlapping brawls, the one against the legal system and the one against President Biden. Their client is much more focused on positioning himself to win the political fight, given that he potentially sees it as a way to prevail in the legal one. Their defense of his actions mirrors that in a microcosm, attempting to leverage his political position as a defense of his targeting the judge’s daughter.

Despite Trump’s self-serving insistences, though, Merchan is not involved in the political fight. His ruling focuses on the implications of the trial, while recognizing that Trump “has a constitutional right to speak to the American voters freely, and to defend himself publicly.” But, he wrote, the Ford case — in which one candidate was battling the government — didn’t apply to Trump.

“The circumstances of the instant matter, however, are different,” his ruling states. “The conventional ‘David vs. Goliath’ roles are no longer in play as demonstrated by the singular power Defendant’s words have on countless others.”

In other words, Trump’s political power is exactly why his words pose such a real threat.