Trump's Trials - Why gag orders against Trump haven't stopped his attacks

Episode Date: November 25, 2023

This week, Scott Detrow and NPR political editor/correspondent Domenico Montanaro discuss gag orders in multiple cases against President Donald Trump and his attempts to weaponize them politically. Plus an update in the New York Civil trial and a Colorado case you might've missed. They're joined by NPR justice correspondent Carrie Johnson. Topics include: - Gag orders in the federal election case and the New York civil fraud trial - The legal and political challenges of implementing gag orders on Trump- Real world consequences of Trump's verbal attacks- Attempts in Colorado to kick Trump off the ballotFollow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Does former President Donald Trump's status as a politician give him extra leeway when it comes to what he can say? From NPR, this is Trump's Trials. I'm Scott Detrow. We love Trump! This is a persecution. Felony violations of our national security laws. We need one more indictment. Criminal conspiracy. To close out this election.

He actually just stormed out of the corner. Innocent until proven guilty in a court of law. Once a week, we talk through the latest developments in the legal trials of former President Donald Trump. This week, we are talking gag orders. We're also going to get into Trump's fight to stay on the ballot in several states, including Colorado.

We'll have some updates from the January 6th trial in D.C., as well as the New York civil fraud trial, where, spoiler alert, a witness ended up in tears. A lot to discuss here, and I am joined, as always, by my colleague, senior political editor and correspondent, Domenico Montanaro. Hey, Domenico. Hey there, Scott. I know you do not mess around when it comes to cooking. What was the best thing you made for Thanksgiving?

Well, I was in charge of turkey again this year, and I have to say, it came out pretty darn good. You know, seasoning is really important. And use a temperature, use a thermometer. It was the right temperature by the end. You can hear more about that on Domenico and My Cooking podcast, one of the many podcasts we do. I would love it. At one point. But this is Trump's trials. In addition to talking about Thanksgiving, Domenico, catch me up on the big moments from this week in Trump's legal battles. Well, we're starting to get a clearer picture of how Trump could use the courtroom on the campaign.

You know, he uses each legal battle as fodder on social media and the campaign trail. You know, when he wins a motion or argument, he's on top. If he loses one, he's a victim of a corrupt judiciary. He can spin it either way. Meanwhile, with uncertainty over where we'll land with this gag order in the January 6th federal trial, there are fears of Trump intimidating witnesses in what is seen as one of the most important cases he's facing. And at the heart here is an argument over political speech. Trump's lawyers say gag orders censor him as a politician, but prosecutors would argue that Trump's attacks on judges, court clerks, and prosecutors themselves really are attempts to subvert the legal process. You know, these are big existential questions that, frankly, the country's never faced before,

and none of the criminal trials have even started yet, Scott. They have not, but there's a lot to talk about, and we will keep doing that after a quick break, and we'll be joined by NPR's national justice correspondent, Kerry Johnson. Stick around. This message comes from NPR sponsor, SAP Concur. Stuart McLean, CFO of Brother UK, shares how SAP Concur's audit and expense tool supports their work across multiple offices. Across Europe, we have a presence in 17 countries, which obviously involves 17 different tax regulations, 17 different fiscal authorities.

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Visit Concur.com to learn more. We're back and we are joined by NPR justice correspondent, Carrie Johnson. Hey, Carrie. Hi there. So if you're listening to this podcast and are not a regular NPR listener, I will just say that Carrie is one of the best and hardest working justice correspondents in the country. So we are glad you could be with us today, Kerry. That is far too kind. I'm delighted to be here, though. Let's start outside the courtroom, though.

And Domenico, I think it's an understatement to say that pointing out and railing against enemies is central to Trump's political identity, right? As is framing himself as a victim of legal witch hunts. I mean, these are both things he's been doing for years. I mean, grievance has been the thing that has fueled his political rise. I mean, that's just what he's done over and over again. Anything that's come against him on a legal standpoint, investigations, impeachments, indictments, it hasn't mattered. He's called them witch hunts and he's played the victim card. Yeah, the Mueller investigation was a witch hunt. Impeachment one was a witch hunt. Impeachment two

was a witch hunt, all of these charges. But Carrie, how has this general approach gone over in the courtroom environments that Trump finds himself in now? Well, one of the big struggles that judges have had with Donald Trump is that, you know, even though he's been indicted in four different jurisdictions, he doesn't behave like any other criminal defendant out there. He has an enormous platform. He's been blasting the prosecutors, the judges, the clerks, the witnesses, potential witnesses against him. And it's really tying courts up in knots and prosecutors, too. They say that they're worried about the rise in threats against people who may be testifying, as well as a rise in threats against the judicial system and the integrity of these trials that are coming up. There's a couple of different gag orders in the works at the moment, and they're increasingly interrelated. So, Carrie, let's start with the New York civil trial,

because Trump has already been fined several times there by the judge. He's been called to the witness stand at one point to explain why he kept attacking a court clerk. And in recent days, Kerry, we've learned a lot about the magnitude of the threats that this court clerk has received because of these attacks. Absolutely. There's a new court filing this week that suggests that the judge in the civil fraud case in New York and his professional law clerk have received hundreds of threatening and harassing voicemails. In fact, a court security officer submitted some evidence into the record, and it was 275 pages, single-spaced pages of threats. These are harassment,

death threats, anti-Semitic remarks about the judge and the clerk, pretty ugly stuff. And the authorities in New York say this is a basis for keeping that gag order in place on Donald Trump. Trump has, of course, already paid something like $15,000 for violating the gag, but it's been lifted while Trump appeals through the court system there. I mean, 275 pages, single-spaced, of these kinds of threats. They said that she gets something like 30 to 50 calls a day with voicemails and, as you noted, anti-Semitic tropes. I mean, these are really real-world consequences,

and there's plenty of judges and clerks, and anybody who has been a political opponent or perceived opponent of Trump's that he's made them out to be has gotten this kind of treatment over and over again. And it really – it's not just something that is just sort of twisted up in the courts or something that's just political speech. This is something that really does have real-world consequences. The gag order in the New York civil case, on again, off again. At the moment, off again, pending appeal. What's going on with the federal case? What is the argument the prosecution has made pushing for one? What is the status of that request? Sure. This past week, the prosecution for the special counsel asserted to the federal appeals court in Washington, D.C., that there needed to be a gag.

the federal appeals court in Washington, D.C., that there needed to be a gag. He strongly defended this gag order in the D.C. election interference case because he said there's this dynamic or this pattern of Trump going after his political opponents, witnesses, people prosecuting him, and then Trump's most vocal supporters taking those words and then levying death threats against people. In fact, he pointed out that the judge in D.C. has been the subject of a death threat and a woman in Texas is being prosecuted for that. He talked about the election worker in Fulton County, Georgia, Ruby Freeman, and how she was afraid to leave her house after Trump leveled false accusations against her. And then, of course, the special counsel, Jack Smith, himself has been the subject of death threats. So this appeals court is now mulling over what to do about it, in part because

criminal defendants like Donald Trump do have First Amendment rights. The challenge here is that Trump's political campaign and political messaging, just like Domenico said, is really intertwined with his criminal defense in all these cases. And judges are very wary of going too far and drawing that line. Yeah. Yeah. And Domenico, meanwhile, it's clear he's going to continue pressing it and pressing it and pressing it and trying to see as far as he could take the attacks. Oh, no question about it. I mean, that's what he does, right? And he's going to test enforcement. He's going to see, you know, $15,000, you know, to Trump. Sure. For most of us, we're like 15 grand. Okay. I'll stop talking. But for him, he's like, you know what? It's a return on investment, right? It's a campaign tactic. He'll

go and raise some more money and kind of use it as another sign of him being a political victim. And he's going to push the envelope over and over again. But like we said, real world consequences for sure, as we've seen people over and over again continue to talk about how this is part of his political strategy. The challenge that these courts are having with Donald Trump, he's careful, somewhat careful, even though it's bombastic and inflammatory in his phrasing. So he doesn't direct his followers to go out and do something. He just offers a suggestion. And if any other criminal defendant, somebody awaiting trial on drug charges, for instance, were to go after potential witnesses in this fashion, the courts would very likely not just fine these people, but haul them into court and threaten them with jail time. Are you really going to do that with Donald Trump, who's the leading candidate for the GOP nomination?

This is the pickle. Does Donald Trump get treated like everybody else in the justice system or not? And that's what these courts need to grapple with. All right, let's shift gears here and quickly check in on that civil fraud case in New York. We saw high drama there this past week when a longtime accountant for the Trump organization, Jeffrey McConney, broke down in tears on the witness stand. He was testifying about the value of the Trump Organization assets, which of course is the heart of that trial. And the judges already ruled that those values were fraudulently inflated. Carrie, any takeaways from that testimony? You know, this is a guy who worked for the

company for 35 years and said he was proud to work there. But he also broke down in tears when he talked about all the legal strain he was under and said he basically left the company unwillingly because he was just tired of all these legal problems and challenges. He also testified, importantly, that Trump himself reviewed financial statements, the same financial statements at issue in this case. So that's an important point for the prosecution. But he also said that he felt like a lot of the financial decisions the company made were justified. It's worth noting that he received a lot of money in severance when he left the company too. One other place to check in on. Colorado is not one of the places where the main trials we're tracking is taking place, but there is another interesting legal challenge to Trump

playing out there that we want to talk about this week. In several states now, people have filed challenges trying to keep Trump off of next year's ballot, and their argument is that his actions leading up to and on January 6th should make him ineligible for office due to the 14th Amendment of the U.S. Constitution. Domenico, help us out with a quick refresher of what the 14th Amendment says. Yeah, the key part here is section three, where it says that no person shall be a senator, representative in Congress, elector of president and vice president, hold any office, civil or military under the United States, who engaged in insurrection or rebellion against the same. Now, the question here is whether or not Trump engaged in insurrection. And certainly, you know, a lot of people,

including this judge in Colorado, believe that Trump did engage in insurrection because of inspiring January 6th. But it's a really tricky legal question of whether or not he did because he hasn't been convicted of anything like that yet. And I wonder how the courts will really look at something like that.

So Kerry, the judge in the Colorado case ruled in favor of Trump keeping him on the ballot, but at the same time said he engaged in insurrection. Now the case is heading to the state Supreme Court. But what is the logic of that ruling? Well, the judge found that Trump was not an officer of the United States. And this is going to sound complicated because, of course, the president takes the oath of office. We watch it every four years on TV. But under some readings of the law and the Constitution, the president is not considered an officer. And that's what the judge found here. Even though some major league legal scholars have very much been intellectual architects behind this movement

to disqualify Trump, there is a live question of whether the president is considered an officer of the U.S. And that's where this Colorado judge landed. Kerry, this is a question that it seems to get to a constitutional reading. It's a question that is playing out in multiple states right now. It has quite high stakes, the presidential election. All of those things seem to be the typical stew of ingredients that lead to something getting before the U.S. Supreme Court. Do we have a sense whether that is the case at this early point? It's worth noting that this week Trump took credit for victories not just in Colorado, but also in Michigan and Minnesota and New Hampshire on this exact issue. So he has been

winning in a lot of states on this question. The open question for you and for all of us is whether the Supreme Court is going to get to this before next November. It may well get there in some form or fashion, but this is a question that's really uncomfortable. who are on the record not really favoring or liking Donald Trump don't want to disqualify him from the ballot. And I don't know that the Supreme Court is going to want to weigh in in that direction either. Generally speaking, this court decides a lot of things are political questions, that they're better left for the political sphere and not the legal sphere. And this seems to be like a, you know, a poster child for that question. to the reality of a lot of these threats. You know, this isn't just kind of make-believe stuff. And I just think that, you know,

these are real people's lives who are facing, you know, these difficult moments. And when I think politically, there's so many elections officials who've been attacked as well. And all of that institutional knowledge that winds up being decreased. Is this something that Trump is going to try to do as he moves forward, if he were to win the presidency, to sort of install loyalists and

people who show fealty to him, who won't push back, who won't stand up for institutions when they think that there's something that the president did that wasn't correct or was outside the law or wasn't within the bounds of what's normal. I think it's a real big open question for just how far Trump is going to push the limits. Carrie, what about you? You know, one thing I've been hearing from this Justice Department, this Attorney General for really a couple of years now is this idea that no one is above the law. And the Justice Department feels strongly in that direction. But the courts, when it comes to practice, are having a really hard time with Donald J. Trump. And where this court in D.C. winds up in terms of how much weight it gives Trump's First Amendment

rights versus the way it would treat any other criminal defendant who's going to trial in the next six months. These are going to be important issues, not just for this case, but they could help create a blueprint for how courts treat other criminal defendants, thousands, tens of thousands of them moving forward. You know, sometimes you hear the aphorism that bad cases make bad law, and this is really, this is going to be a challenge for the courts. That is NPR Justice Correspondent Carrie Johnson. Carrie, thank you so much. Happy to be here.

And also Senior Political Editor and Correspondent Domenico Montanaro. Thanks, Domenico. Hey, you're welcome, as always. Hope both of you enjoy the leftovers parade of this weekend. Hi. And we'll be back next week with another episode of Trump's Trials. Be sure to follow more of NPR's political coverage from Domenico and Kerry and the rest of the NPR politics team in daily episodes of the NPR Politics Podcast.

Quick note before we end the show, although this podcast and all of NPR's political reporting comes to you free, It is not free to produce. So shout out to those of you listening who have subscribed to Trump's Trials Plus. You help make it possible for NPR to keep providing you with valuable, independent journalism. If you are listening to this and you're not a supporter yet, we are days away from Giving Tuesday, November 28th, an international day of giving. And that is the perfect reason to be a part of the community of listeners who support public media. You can give today at donate.npr.org or explore NPR Plus at

plus.npr.org. The show is produced by Tyler Bartleman, edited by Adam Rady and Steve Drummond. Our technical director is Kwasi Lee. Our executive producers are Beth Donovan and Sammy Yenigan. Eric Maripoti is NPR's vice president of news programming. I'm Scott Detrow. Thanks for listening to Trump's Trials from NPR. Thank you. whatever the market throws at you next. Learn more at Concur.com. There are election stories, and then there are the backstories. Every day on the Consider This podcast, we take a closer look at the biggest news story of the day and dig into the context behind the headlines. Get a better sense of what's happening and why it's happening in this election and across the nation. Listen to Consider This every day,

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