New York hush money trial judge considers if Trump violated gag order

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• Geoff Bennett:

  It was the second day of testimony in former President Trump's criminal hush money trial in New York City. On the witness stand today, former "National Enquirer" publisher David Pecker, who described a 2015 agreement with Donald Trump to try to kill negative stories about him and run negative stories about his political rivals.

  William Brangham joins us now with more.

  So, William, the judge now has to rule on Mr. Trump's behavior outside the courtroom; is that right?

• William Brangham:

  That's right, Geoff.

  Today began with a very tense hearing over whether the former president has been violating the gag order that was imposed on him after Trump criticized witnesses, the judge and the judge's daughter.

  Georgetown University's Mary McCord is a former acting attorney general for national security, and she has been following this and all of Trump's cases very closely.

  Mary, so nice to see you again. Thanks for being here.

  So, this hearing, whether Trump was violating the gag order, that gag order prohibits him from making statements about the witnesses and certain members of the court and jurors. Prosecutors alleged he's violated that 10 different times. What is he accused of doing?

• Mary McCord, Former Justice Department Official:

  Well, he's violated it in a number of ways.

  Originally, they sought to have this hearing on contempt, whether he was in contempt of the court's order, based on three initial social media posts that attacked witnesses, potential witnesses, people he had reason to believe would be witnesses, like Michael Cohen, right, and Stormy Daniels herself.

  Then, after they filed that motion for contempt, Mr. Trump posted seven more posts, sometimes attacking Mr. Cohen, calling him a serial perjurer, but also, and I think very troublesomely to the court, attacking jurors, saying — he did this by reposting a different post of Jesse Watters that talked about liberal individuals lying, and then he added to that to get onto this trial.

  And so that caused the government to file another motion for contempt. And I will note that, in today's hearing, the prosecutor said, we're actually going to be filing yet another motion for contempt based on some even more recent…

• William Brangham:

  Because it just keeps going.

• Mary McCord:

  It just keeps going.

• William Brangham:

  Trump argues and his lawyers argue that this is an unconstitutional infringement on his free speech rights, that he feels that this is a rigged system against him, and he has every right to say that.

  What are defendants' rights vis-a-vis the First Amendment in this regard?

• Mary McCord:

  Sure.

  Defendants do have constitutional rights, like all people in the United States. But when you are a defendant in a criminal trial, those rights are not absolute. They're not limitless. They can be restricted when things that you are saying, when your speech has an impact negatively on the administration of justice, meaning that the court cannot properly enforce the rule of law and administer justice in the courtroom because of your speech.

  And, notably, Mr. Trump's been making this argument about the Constitution, not just in this case in the Manhattan courtroom, but he made it before Judge Chutkan in the January 6 federal case here in Washington, D.C. That went all the way up to the D.C. Circuit, which upheld the restrictions, made some modifications to them and upheld them.

  And then Judge Merchan has basically adopted pretty much the same order that the D.C. Circuit had upheld here. Now, he's not bound by the D.C. Circuit, yet he said, look, that's a court who looked at these First Amendment questions and resolved them by saying the needs for the administration of justice justify these minimal restrictions.

• William Brangham:

  Russell Gold, who's a law professor at the University of Alabama, was quoted in a piece in Politico, saying — quote — "I can't imagine any other defendant posting on social media about a judge's family and not being very quickly incarcerated."

  This is reference to Trump attacking Judge Merchan's daughter.

  Do you agree that Trump has been getting a disposition that other defendants would not get?

• Mary McCord:

  Yes.

  You know, I can't say that every defendant would be immediately detained for attacking a member of the judge's family, but we do see repeat, repeat violations. And he is sanctioned. Judge Engoron in the civil fraud trial sanctioned him twice monetarily. I suspect we are going to see monetary sanctions as a result of today's hearing. The judge did not make a decision today.

  I think judges are very reluctant to detain a former president, not only because it will be immediately branded and attacked as political, and they're trying very hard to maintain that they're being fair and impartial, even though some people may say their attempts to be fair and impartial mean they actually are putting a thumb on the scale in favor of Mr. Trump.

  But also, logistically, it's incredibly complicated, right, when you're talking about somebody with Secret Service protection, and where would you house that person, et cetera? And I think the judges are really conscious of the fact that he is a candidate for president. This is the election season.

  And I think they really are hesitant to shut down all opportunity for him to campaign, which is what it would mean if he were detained.

• William Brangham:

  Right.

  Lastly, I just want to read an excerpt from Merchan's gag order, where he was talking about the practical implications of this. He wrote that: "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. Such concerns will undoubtedly interfere with the fair administration of justice and constitutes a direct attack on the rule of law itself."

  Do you agree with that?

• Mary McCord:

  Absolutely.

  And I think that's why not only has Judge Merchan taken these things so seriously, but Judge Chutkan, the D.C. Circuit, Judge Engoron. What happens is, first of all, threats get made against witnesses, threats get made against potential jurors, judge's family. We just were talking about that, prosecutors' family.

  I know Jack Smith has reported how many millions of dollars they're having to spend for security for the prosecution's team and for their families. But, also, witnesses might color their testimony because they're worried or scared about what will happen if they testify truthfully.

  Jurors — we have already seen one juror pull out after being selected…

• William Brangham:

  Right.

• Mary McCord:

  … because her own friends were able to identify her just based on the information, not her name, and she was worried for her safety and her ability to be impartial.

  And so there are real-world consequences. Judge Merchan knew it, and he issued that order with that explanation.

• William Brangham:

  Mary McCord of Georgetown, thank you so much, as always.

• Mary McCord:

  My pleasure.