Today, Explained - Trump, gagged

Episode Date: October 24, 2023

The most indicted president in history has judges grappling with how to balance the right to free speech against his history of targeting perceived enemies. Investigative journalist Andrea Bernstein and former Mueller prosecutor Andrew Weissmann explain the gag orders against the leading Republican candidate for president. This episode was produced by Isabel Angell, edited by Matt Collette, fact-checked by Laura Bullard, engineered by Patrick Boyd, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

I have an idea. Shh. Get deranged Jack Smith. Shh. To take just a tiny portion of the millions of dollars he's spending illegally targeting me. Sir. And let him go to the White House. What?

With his army of thugs to solve the cocaine dilemma. The former president is facing more indictments than all of the previous presidents combined. And as we well know, he loves to blast anyone who dares challenge him, which means he's blasting the people bringing the cases against him, be they prosecutors or lowly court employees. So the judges in some of these cases are being forced to weigh the First Amendment rights of a U.S. citizen and leading presidential candidate against, you know, maintaining the integrity of the American judiciary.

This is fine. I'm okay with the events that are unfolding currently. No big deal. Shushing the former president, forthcoming on Today Explained. Get groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit superstore.ca to get started. What do you think today explained us? I don't know. Is it possible to hush the former president of the United States, Donald J. Trump? Yeah, well, maybe. Maybe it is.

I feel like, you know, I don't want to say the jury is still out because it seems like an overdetermined metaphor for the moment, but maybe. The reason I say this is because I've been sitting in a courtroom in New York with the former president over the last several weeks. And what is fascinating to me is that, so outside the courtroom, like there's this long hallway and there's like a scrum of cameras from all over the world. And people are yelling, Mr. President, Mr. President, do you have anything to say? And then the minute he gets in the courtroom, he has to be completely silent. And he has to sit at the defense table. And he can't say anything. Maybe he could whisper to his lawyers, but that's it. The bailiff comes in and says, all rise.

He rises. He sits. I mean, a courtroom is kind of like the last vestiges of the monarchy in the U.S. democratic system. So there's the judge in his, in this case, his robe sitting up higher than everybody. And when the judge talks, people have to listen. Andrea Bernstein has been reporting on Donald Trump since forever. We got in touch with her between court dates to ask about these gag orders. Now, Trump maybe intentionally, maybe not intentionally violated his New York gag order.

So the judge kind of fined him a small fine and gave him a second chance and said, if you go and you do this again, you're in trouble. So is he gagable? Maybe. There are two cases in question here. We started with the one in New York. Yeah. So the New York case is a $250 million civil fraud trial against Donald Trump, Don Jr. and Eric Trump, several current or former employees of the Trump Organization, and a bunch of other sort of corporate entities. And what it is alleging is a repeated and persistent fraud in New York and a conspiracy to have a persistent and repeated fraud. The complaint demonstrates that Donald Trump falsely inflated his net worth by billions of dollars

to unjustly enrich himself and to cheat this system, thereby cheating all of us. Now, this is a New York-specific law. And the idea was, we're going to pass a law that says you can't be fraudulent in your business in New York. And it doesn't even matter if there's any harm. But for the integrity of the New York business community, which is obviously a huge pillar of the New York economy, you can't do this. And that is what Donald Trump is accused of violating. And in fact, there are seven causes of action. And the judge found that Trump had committed persistent and repeated fraud, which is the first cause of action.

And now there are these six other causes of action. And that will determine, I think, most significantly here, how much money Trump and the Trump Organization and the various defendants have to pay to the state of New York. The repercussions for Donald Trump and his business organization are incredible. Potential loss of control of significant assets in New York, including a company that employs hundreds of people, and the potential to be banned from doing business, him and his family, in New York state for five years. What the judge ruled...

Okay, so that's where one gag order has been issued. Now let's talk about the other case where one's been issued and revoked, but we'll get to that later. What is going on in this D.C. gag order case? So in the D.C. gag order case, this is the January 6th case brought by the special counsel, Jack Smith. This is a big one. It's the sort of big January 6th case. In other words, did Trump break the law in his actions surrounding January 6th? So the former president is a very exceptional case here from his maybe sort of small potatoes civil case in New York to his extremely big potatoes criminal case in D.C. But before we talk about him specifically, what is a gag order just generally for your, you know, middling criminals that we never hear about? You can have all kinds of gag orders in all kinds of cases. And what they do is they restrict the parameters of a defendant's speech if the judge believes that in saying something, the defendant is going to disrupt the criminal procedure, the fairness of the court process, etc., etc.

Judges are loathe to impose them, but they will do it if they feel that it's going to potentially disrupt the trial or the fairness of a criminal proceeding. So that's how this applies to your regular criminal, your everyday criminal, one we'd never hear about, alleged criminal, whatever it might be. How do these gag orders apply to the loudest person perhaps on planet Earth? Let's talk about the New York case and the former president. Judge Arthur Nguyen has kind of been resistant. I mean, a judge doesn't want to do this because Americans hold dear the right to speak, hold dear the First Amendment. The judge doesn't want to be seen like they are tainting a proceeding by saying you can't speak out about it or that they're putting their thumb on a political campaign. So the judge resisted in New York for a long time, even though Trump went for years calling the New York attorney general, Letitia James, who is black, racist. Uh-huh.

We have a racist attorney general who's a horror show who ran on the basis that she was going to get Trump before she even knew anything about me. The judge was also attacked, and the judge kind of let that go. But then Trump's trial begins in New York, and he puts up a social media post where he basically attacks the judge's law clerk, trying to show that the process is somehow tainted. Donald Trump posted on his so-called truth social media account a photo of this principal law clerk with Chuck Schumer and suggested that she was Chuck Schumer's girlfriend. There is nothing to suggest, let's be very clear, that the principal law clerk is a girlfriend of Chuck Schumer. Now, whenever the former president does this, the individual is,

and this has basically been proven over and over again, is subjected to a torrent of internet hate. And what the concern is, is number one, that contains the process, especially because it can intimidate witnesses. And also, at the very outset of one of these cases, when Mara Longo was searched, you might remember that an individual who read the president's social media posts at the time showed up at the Cincinnati office of the FBI with dangerous weapons. So all it takes is one deranged individual to read that

and commit an act of violence. And so the judge said, no, I am imposing a gag order as to my staff. You cannot speak ill of my staff. There's been breaking news in the case against Donald Trump. Judge Arthur N. Garan has now put a gag order on all parties in the case, a specific gag order, though, regarding. And Trump agreed. Trump said out loud to the judge, I will do this. I will not attack your staff. And he took down a social media post, and he seemingly did not until sometime last week it emerged that the former president had left the attack on the New York judge's clerk up on his website. Trump's defense was it was inadvertent. There was a staffer left it up. We meant to take it down. We forgot it was on the website. So the judge said, OK, I'm going to fine you $5,000, which is a negligible amount. $5,000 for $5,000, an alleged billionaire. Right. But what he said was maybe this was inadvertent. And this is because this is your first offense. Just don't do it again. And the judge said, if you do do it again,000 fine for leaving up a post that violated this gag order.

That's the New York case. I love an appetizer fine. But the ramifications could increase. The consequences could become greater for the former president. What is up in D.C.? This is the case in which we saw what happens when the president unleashes violent speech. When I was working on the previous podcast I worked on, We'll Be Wild, I spoke to so many domestic terrorism experts who said this is not theoretical. Can speech lead to violence?

We know it does. So what the judge said is, you can't have the threat of violence hanging over a criminal court proceeding. You just cannot and expect to have integrity of a proceeding. So she issued a gag order. She really thread the needle on it. She said to Trump, you cannot attack Jack Smith, you cannot attack witnesses, you cannot attack the defense, and you cannot attack court personnel. But you can attack President Biden, you can attack the Justice Department, you can say anything you want about the people of Washington, D.C. Okay. this. We want to have more briefing on it. And we want to stay. So the gag order was issued on a Monday after a court argument. It was stayed on a Friday. And over the weekend, Trump attacks Jack Smith. He calls him deranged, which is his favorite moniker for Jack Smith. I've named him deranged Jack Smith. And, you know, I know this seems funny, but I think that for so many years,

I covered Trump and people were like, is he ever going to be called to account? Is the criminal justice system or the justice system ever going to say you can't do these things? The premise behind that thinking was some kind of court action would actually be a constraint. It's the third branch of government. It can say what you can and can't do. But what Trump does when he attacks judges and he attacks Jack Smith and when he attacks potential witnesses, what he does is he implants in people's minds a sense of like the justice system is no good. It can't be trusted.

So he is undermining confidence in the entire justice system when he does this. So it's not just sort of Trump being Trump. It has a real life effect. And I think reading the judge's order, Judge Tanya Chutkin in DC, that is what you see. A concern that these are not just sort of funny words.

They're not just showmanship so he can get more votes or get attention, but they actually affect the criminal justice system. Do you think these judges have sort of met their match in trying to navigate these cases with someone like the former president who has such a way of, I don't know, maneuvering this legal system to his advantage? So looking at these two cases, so far, I mean, one of the things that's interesting about Trump is how far will he push it? And so far, he will not directly violate a judge's order intentionally, so far as we know. So assuming, benefit of the doubt, that Trump people left this thing on their website.

I mean, who reads websites, right? That they left it on their website by mistake. We'll just kind of assume that that's the case. It does seem that Trump will abide by it, as he did with the D.C. gag order. So long as in effect, he didn't actually technically violate it. So in theory, it can work. And we will see as this court process plays out. I mean, we're definitely, all of us, walking along in a fog. We cannot see into the future because we've never, ever in the history of this country had anything like this. Andrea Bernstein, when she's not hanging with the former president in court, she's reporting on the guy who helped push America's judiciary rightward. His name's Leonard Leo. We Don't Talk About Leonard is a three-part series from ProPublica and WNYC's On the Media.

You can find On the Media wherever you find us. We are going to ask a prosecutor who worked on the Mueller investigation to weigh in on these gag orders when we're back on Today Explained. Support for Today Explained comes from Aura. Aura believes that sharing pictures is a great way to keep up with family, and Aura says it's never been easier thanks to their digital picture frames. They were named the number one digital photo frame by Wirecutter. Aura frames make it easy to share unlimited photos

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If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Bing, bing, bing, bong, bong, bong, bong, bing. Andrew Weissman, I teach at NYU Law School and I co-host the Prosecuting Donald Trump podcast. And you maybe were once a prosecutor yourself, correct? That would be true.

Okay, great. So as a former prosecutor, have you ever asked for a gag order? You know, it's interesting. I don't know that I asked for it, but I've been on cases where they've been imposed. They're not very common. What is common is restrictions on what lawyers can say. What's a little bit more unusual is when it applies to the parties. So in the special counsel Mueller investigation, which I was on, that applied to Paul Manafort and to Roger Stone because the court imposed these additional restrictions because they were doing things to either tamper with witnesses or to threaten violence or to just interfere with the jury pool. Judge Amy Berman Jackson said she could not turn a blind eye after prosecutors alleged

Manafort tried to influence what potential witnesses might testify about his lobbying work with Ukraine. Roger Stone's was the most famous case because that was one where there was a photo of the really respected district judge posted online by Roger Stone, and next to her face were crosshairs. Today, Stone repeatedly apologized, calling it a stupid lapse of judgment. Judge Jackson said his apology, quote, rings quite hollow. And with that, the judge issued her ruling, a full gag order. Stone is not to speak with anyone publicly about his case, period.

Everybody is entitled to a fair trial. And that means not just the defendant, but also the government. And that means the just the defendant, but also the government, and that means the public as well. So that means that you don't want to have witnesses be afraid to come forward and tell the truth. You don't want their family members to be afraid for the same reason. You don't want court staff and court officers and prosecutors and the judges, law clerks, to feel threatened in any way just for doing their job. That's part of the judicial system. And so this is a step that's taken by courts in unusual circumstances, to be fair, to make sure that nothing that the defendant or

defendant's counsel or the prosecutors are doing that would interfere with the integrity of the process. And the whole idea is that both sides will have their day in court. We're talking about unusual circumstances here. And now the former president has received a $5,000 fine for violating a gag order. But as the penalties increase and the circumstances grow more dire, there is this sort of looming jail time hanging over him. Could one of these judges send the former president who's running to be reelected to jail for throwing bombs at prosecutors, at witnesses, at court employees, at judges? The answer to that is yes, it could happen. But before that would happen, there are a couple things.

One, I do think that we should see if there is a violation. What exactly is the violation? I think that everyone always says, oh, he's going to violate. I'm not so sure about that because you know what? I don't think he wants to go to jail. So I think he will push around the edges and go up to the line. But I think with respect to naming people, so I just don't know that he's going to do it because you know what? The threat of going to jail is a big deal. So for instance, in the New York case, he was told it's a very narrow order, which is just essentially don't threaten my law clerks. And so I don't know that Donald Trump is going to do that because I really do think the judge

there has now put him on notice twice with respect to that. So if he does do that because I really do think the judge there has now put him on notice twice with respect to that. So if he does do that, it's going to be on him that there are those consequences. And you don't think either judge, say in New York or in D.C., will be cowed by the prospect of sending a, you know, formidable presidential candidate to jail? You think they'll do it if they have to? If they have to, yes. I don't think any judge particularly likes to send somebody to jail pre-trial before there's been a determination of guilt. I saw that both in the Roger Stone case and in the Paul Manafort case. I mean, remember, Paul Manafort was indicted a second time for conduct while he was on bail, which was tampering with two witnesses.

And you could see the judge struggling with the idea of whether he should be in jail awaiting trial. And by the way, it doesn't have to go from zero to 60 immediately. It can be incremental. It could be house arrest. It could be screening of truth social posts. There are a number of things that could be done. But I do think at the end of the day, if it were to continue and you were to have these kinds of direct intentional violations that really posed significant risk of violence, then I think a judge would be well within his or her rights to impose that kind of sanction.

Hmm. There's these core tensions here in these cases. They're very different cases where these two gag orders have been issued. But in both cases, you've got the American judicial system going up against a former president, which is, of course, unprecedented in these cases, to try and maintain the rule of law. And then you've got this former president who's running for re-election and who's deeply invested in discrediting this system and discrediting all the players involved. You know, what happens if he's successful? What kind of precedent does that set? That's what I call the apocalyptic question. So Donald Trump has been exceedingly cagey and clever about attacking any people or institutions that pose a limit on his authority. So the media.

The fake news followed us. They are the fake, fake, disgusting news. As I know very well from personal experience, he has attacked and undermined the credibility of prosecutors and the Department of Justice. But despite the demented prosecution of our movement by our corrupt and highly partisan Department of Injustice. We're getting stronger by the day. Somebody said he's obviously done that with respect to people in Congress. Together, we will take on the ultra left wing liars, losers, creeps, perverts and freaks who are devouring the future of this state like a swarm of locusts.

And we'll stand up to crazy Nancy Pelosi who ruined San Francisco. How's her husband doing, by the way? Anybody know? And I think what we're seeing now is a true test of the judicial system, which by and large has held up extremely well during the Trump administration. And since then, this will be the test of a lifetime for our country as to whether there's a sufficient number of people in the United States who believe in the rule of law and that there should be checks and balances in the system and believe in the jury system. So, you know, it remains to be seen how that will fare. I tend to be, probably because I'm an institutionalist and I worked as a prosecutor and defense lawyer for so long, I tend to have a lot of faith in the system.

I tend to have a lot of faith in the people seeing the evidence at a trial and being able to evaluate it for themselves and there being enough people to keep the country on a course that is consistent with its history and the Constitution of the United States. Andrew Weissman, he's got a podcast.

It's called Prosecuting Donald Trump. I'm Sean Ramos for him. We've got a podcast called Today Explained. Today's was produced by Isabel Angel. We were edited by Matthew Collette, fact checked by Laura Bullard and mixed by Patrick Boyd until next time.