Lawyers for Donald Trump made an extraordinary request in his hush-money case on Friday: they want state Supreme Court Justice Juan Merchan to affirm that Tuesday’s gag order lets Trump continue verbally attacking the judge’s progressive daughter.
The two-page letter is essentially Trump asking Merchan this question: Judge, can you tell prosecutors that it’s OK for me to keep bashing your daughter?
Gagged on Tuesday, Trump had waited only until Wednesday before taking to Truth Social and attacking both the judge and his daughter, Loren Merchan, a Democratic political consultant.
The judge’s daughter “has just posted a picture of me behind bars, her obvious goal,” the GOP frontrunner complained, referencing a social media account that court officials soon said was a hoax.
Prosecutors reacted angrily on Thursday, telling the judge in their own letter that Trump’s attacks on Loren Merchan were “contumacious” — meaning willfully disobedient to authority.
Prosecutors asked permission to formally file a motion requesting the judge “clarify or confirm” that Tuesday’s gag order “protects family members of the Court, the District Attorney, and all other individuals mentioned in the Order.”
Their motion, if allowed, would ask the judge to “direct that defendant immediately desist from attacks on family members.”
Otherwise, Trump’s “invective” will cause potential trial witnesses and prospective jurors to fear similar attacks, prosecutor Joshua Steinglass argued.
“This fear is not hypothetical: in the course of preparing for trial, multiple potential witnesses have already expressed grave concerns to the People about their own safety and that of their family members should they appear as witnesses against defendant,” Steinglass wrote.
Trump responded through his lawyers on Friday, doubling down on his right to attack Loren Merchan and countering that the gag order clearly allows statements about the judge’s family.
No “clarification” is necessary, Trump countered in Friday’s letter, signed by his two lead hush-money lawyers, Susan Necheles and Todd Blanche.
“Contrary to the People’s suggestion, the Court cannot ‘direct’ President Trump to do something that the gag order does not require,” the letter read.
Indeed, while the gag order bars statements about witnesses, jurors, trial prosecutors, and court staff — along with the prosecutors’ and court staff’s families — it does not bar statements about the “court” itself, meaning the judge. Nor does it mention the judge’s family members.
Likewise, the gag bars statements about the staff members of District Attorney Alvin Bragg and those staff members’ families. But it does not specifically protect Bragg himself or Bragg’s family members.
If Merchan were to say now that his own family members are covered, as prosecutors hope, then the judge would actually be expanding, rather than clarifying, the gag order, the defense countered.
That would open a whole new legal can of worms, inviting lengthy arguments over First Amendment constraints against prior restraint of speech, the defense threatened.
“Given the sensitivities associated with prior restraints, if the Court wishes to consider such an expansion, a complete opportunity for full adversarial briefing is necessary,” Friday’s defense letter said.
Such briefing would be especially necessary given that Merchan’s daughter “is actively supporting adversarial campaign speech by President Trump’s political opponents,” the defense said.
Loren Merchan helps run the Chicago-based, progressive consulting firm Authentic Campaigns. The firm has worked on campaigns for key Trump rivals, including Biden, Harris, House Minority Leader Hakeem Jeffries, and California Gov. Gavin Newsom.
The next step in this battle over Trump’s hush-money gag order is now in Merchan’s court, so to speak.
With the April 15 trial start date looming, Merchan must choose between protecting his daughter and avoiding a potentially lengthy “prior restraint” battle.
Alternately, he could expand or clarify the gag order to protect family members, and deny further motions on the topic.
It is unclear when — or whether — he’ll agree to prosecutors’ request to allow a full exchange of motions on the question of whether a “clarification” of the gag is needed.
