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Tuesday Talk*: Muzzling A Candidate Defendant

In the usual course, a criminal defendant would not deliberately try to anger the judge in his case. It’s not that one shouldn’t expect a judge to be above personal attacks and render decisions that are correct regardless, but to the extent a defendant would want the judge to be  as sympathetic to his cause as possible, attacking the judge is not the best plan. Then again, Donald Trump is not the usual defendant.

It was an explosive claim from Donald J. Trump, just weeks before his Manhattan criminal trial is set to begin: He assailed the judge’s daughter on Wednesday, saying she had used an image of the former president behind bars as a social media profile picture.

The photo made it “completely impossible for me to get a fair trial,” Mr. Trump wrote on Truth Social. He demanded that the judge, Juan M. Merchan, recuse himself.

Whether or not a twit by the judge’s daughter reflects on the judge is one question. An adult daughter is certainly entitled to her own views, including the desire to see Trump behind bars, but just as Justice Clarence Thomas is not Ginni, Justice Merchan is not his daughter. But this being Trump, naturally he got it wrong anyway.

But there was a problem with his claim: The New York State Court system says the account on X is bogus.

Nonetheless, the prosecution sought to amend the gag order, prohibiting Trump from attacking witnesses, prosecutors other than Alvin Bragg and court staff. Justice Merchan didn’t include himself in the order, it being unseemly for a judge to order himself above grievance, but then he didn’t anticipate that Trump would go after his family.

On Thursday, Mr. Trump intensified his attacks, identifying Justice Merchan’s daughter by name and accusing her of being “a Rabid Trump Hater, who has admitted to having conversations with her father about me, and yet he gagged me.” The former president then renewed his demands that the judge recuse himself from the case, calling Justice Merchan “totally compromised.”

And on Saturday, in an ominous escalation, Mr. Trump posted a news article to Truth Social that displayed two pictures of Ms. Merchan.

It’s now called “stochastic terrorism,” where “political or media figures publicly demonizing a person or group in such a way that it inspires supporters of the figures to commit a violent act against the target of the speech.” It’s not that it’s a true threat, as it doesn’t call for imminent violence, but the threat is clear and the potential, if not likelihood, of violence or threats of violence is intended to exert political influence. Attacking a family member is just as, if not more so, disturbing than attacking the judge directly.

When the attack comes from a defendant in a criminal prosecution, the purpose is to subvert the functioning of the legal system. It is certainly within the judge’s authority to prohibit conduct that undermines the operation of the legal system.

But Trump isn’t merely a defendant, but the presumptive Republican nominee for president, and there is a strong argument to be made that bringing him to trial, and obtaining a conviction, is itself intended to influence the polity by turning candidate Trump into felon Trump. There is, of course, a similarly strong argument to be made that Trump should be tried for his conduct and the voters should be aware that the person for whom they might vote is a criminal.

As the law provides for all defendants, Trump included, he remains innocent until such time as he pleads guilty or is found guilty by a jury. Damning as the underlying facts of the case may (or may not, according to your religion) be, the allegations are already well known. As Trump straddles the positions of presidential candidate and criminal defendant, the conflict is manifest.

As candidate, he has reason to attack the process and the people involved in that process to argue that he is the perpetual feckless victim of an abusive legal system seeking to impugn him to harm his candidacy. As criminal defendant, he has no right to engage in attacks against individuals in order to threaten, and perhaps get his sycophants to do harm, to participants in the system society has crafted to resolve the issue of criminal guilt.

Should Trump be gagged? Granted that Trump’s attacks are wrong, infantile and outrageous, but as a candidate, is he not entitled to use whatever he deems viable to fight against the taint of being a criminal defendant and, potentially a felon? Sure, it might be tactically wiser to challenge the accusations rather than attack the family of the people involved in his criminal prosecution, but it’s much easier to attack people, especially falsely, than to explain why you aren’t guilty. Even if Justice Merchan’s gag order is legally appropriate, does the fact that Trump is also the candidate change the equation of what he should be allowed to say?

*Tuesday Talk rules apply.

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