When Donald Trump takes the debate stage tonight against President Biden in Atlanta, he will be partially unshackled from a gag order imposed on him during his criminal trial in Manhattan.
And while Trump has complained that the measure is still too restrictive, it’s certainly loose enough to permit him to lash out at the key witnesses in the trial, and at the proceeding itself, where he became the first former president to be found guilty of a crime.
There’s no evidence that Justice Juan Merchan, who oversaw the trial in Manhattan, relaxed the gag order because of the debate. But the judge’s timing will have the effect of giving Trump the green light to complain more vocally about the case, in which he was convicted on 34 counts of falsifying business records.
In a ruling issued on Tuesday, Merchan said Trump can now broadly go after the jury that convicted him, although he will have to wait until after he is sentenced next month to publicly assail others involved in the proceeding, including prosecutors and their relatives.
Most important, the judge’s ruling opened the door for Trump to immediately attack two of the state’s main witnesses. One is Michael Cohen, his former fixer and lawyer, who told the jury how he paid off a porn star on Trump’s behalf in the run-up to the 2016 election. The other is the porn star herself, Stormy Daniels, who testified in detail about a one-night sexual encounter she had with Trump at a golf tournament in the 2000s.
Going on the attack
Both Cohen and Daniels have been taking victory laps, rubbing Trump’s face in last month’s guilty verdicts, and until now Trump has not been able to respond. Cohen in particular has mocked Trump on his podcast and on social media for months, with an escalating series of nicknames and insults.
Given his pent-up desire to attack Cohen and the other witnesses, the debate stage might offer an irresistible opportunity for Trump, even though his opponent is Biden. Trump has sought without basis to blame Biden for instigating the prosecution in New York and the other cases against him.
And Trump wants even more freedom, saying in an interview this week on the right-wing website Newsmax that the partial lifting of the gag order was not enough.
“I think partial is very unfair, because there are things we have to say,” Trump said. “Especially in my case, I’m going into a debate, and I’m going to have to talk about a gag order. What does partial mean? It’s not fair.”
Trump went to say, “The gag order has to be lifted in its entirety.”
While Merchan’s order permits the former president to go as far as he wants in painting the Manhattan case as a political witch hunt, some of Trump’s advisers have been unnerved by the way he has repeatedly assailed the cases. They are concerned that the constant drumbeat of attacks has often served to keep his criminal conduct in the forefront of voters’ minds.
Trump will still have to exercise a modicum of caution during the debate, given that he’s still under a gag order in the federal case charging him with plotting to overturn the 2020 election. Even though that proceeding has been frozen for months as courts, including the Supreme Court, have been considering his claims to be immune from prosecution, the gag order bars him from attacking many of the prosecutors, witnesses and court staff working on the case.
Trump has so far managed to avoid having yet another gag order placed on him in his federal case in Florida where he stands accused of illegally holding on to a trove of classified documents after he left office.
Targeting the F.B.I.
Just this week, in fact, Judge Aileen Cannon, who is presiding over the case, expressed skepticism about a request by federal prosecutors to bar Trump from making any public statements that might endanger F.B.I. agents working on the case.
The prosecutors, who work for the special counsel, Jack Smith, had asked Cannon to curb Trump’s remarks about the F.B.I. after he blatantly misrepresented a policy put in place to limit the use of deadly force during the bureau’s search two years ago of Mar-a-Lago, Trump’s club and residence in Florida.
While the policy was designed to strictly limit the use of lethal force, Trump flipped it upside down, telling his supporters that the F.B.I. had authorized its agents to kill him when they showed up at Mar-a-Lago.
At a hearing in front of Cannon on Monday, Todd Blanche, one of Trump’s lawyers, said that any restrictions imposed on Trump would have a “chilling effect” on what he could say during the debate. Blanche even suggested that if a gag order was imposed on Trump, federal agents might listen to the debate and arrest him if he violated it.
David Harbach, one of Smith’s tops deputies, scoffed at that idea and sought to remind Cannon that Trump’s lies about the F.B.I. were not “legitimate campaign speech.”
“To suggest the F.B.I. was there to take out Mr. Trump and put his family in danger — there is no remotely campaign-related, First Amendment reason for saying something like this,” Harbach said. “It’s beyond irresponsible. It’s dangerous.”
Your questions
We’re asking readers what they’d like to know about the Trump cases: the charges, the procedure, the important players or anything else. You can send us your question by filling out this form.
Can anything be done to remove Aileen Cannon from the stolen documents case? — Camille Lee, Long Island, New York.
Alan: The typical way to get a judge off a case is to file what’s known as a recusal motion and essentially ask them to remove themselves. But that almost certainly won’t happen in the case of Judge Cannon. It’s far more likely that, when the time is right, the special counsel, Jack Smith, will go over her head and ask the U.S. Court of Appeals for the 11th Circuit to remove her. But Smith will get only one chance to make such a bold move and he will want to wait until Cannon has made a clear error — or a series of them — that will strengthen his request for removal.
What else to watch
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We’re eagerly awaiting two Supreme Court rulings involving Trump that could come either tomorrow or at some point next week. One concerns an obstruction law that is central to Trump’s federal election case in Washington. The other will help determine whether Trump is at least partly immune from prosecution in that case because the indictment arose from acts he took as president.
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We’re also waiting for Cannon to issue decisions on a host of motions she entertained at a series of hearings in Florida last week. Chief among them was a request by Trump’s lawyers to dismiss the classified documents case because Smith was unconstitutionally appointed as special counsel.
Where does each criminal case stand?
Trump is at the center of at least four separate criminal investigations, at both the state and federal levels, into matters related to his business and political careers. Here is where each case stands.
