Former President Donald Trump’s criminal case in Manhattan will have its second public hearing Thursday morning when a judge considers arguments over whether he should limit what Trump can say publicly about the evidence against him.
Trump will not be in attendance at the hearing, the first in his criminal case since his April 4 arraignment, when he entered a not guilty plea to 34 felony counts of falsification of business records.
At that hearing, a Manhattan prosecutor said the two sides were “very close to agreement” on a protective order that would have barred Trump from discussing or posting on social media about evidence received as part of discovery in the case.
Those discussions have since stalled, and on April 24, a prosecutor for Manhattan District Attorney Alvin Bragg requested that Judge Juan Merchan implement the protective order without the defense team’s approval. The order would prevent Trump from making copies of discovery material and would require prosecutors’ consent before Trump could view forensic images of witnesses’ phones.
The prosecutor’s filing includes a series of examples in which Trump has made posts “attacking” witnesses and others involved in other investigations. The examples included social media posts and statements made related to special counsel Robert Mueller‘s investigation into alleged coordination between Trump’s 2016 presidential campaign and the Russian government, his two impeachment inquiries and a Fulton County, Georgia, investigation into his efforts to overturn that state’s 2020 election results.
Trump’s attorneys said in a filing Monday that the prosecutor’s request “would be an unprecedented and extraordinarily broad muzzle on a leading contender for the presidency of the United States.”
“President Trump is the leading Republican candidate for President of the United States. To state the obvious, there will continue to be significant public commentary about this case and his candidacy, to which he has a right and a need to respond, both for his own sake and for the benefit of the voting public,” wrote the attorneys, Susan Necheles, Todd Blanche and Joe Tacopina.
Merchan said during the April 4 arraignment that Trump’s candidacy was a factor that he’d weigh before considering a gag order in the case.
“Such restraints are the most serious and least intolerable on First Amendment rights. That does apply doubly to Mr. Trump, because he is a candidate for the presidency of the United States,” Merchan said. “So, those First Amendment rights are critically important, obviously.”
Trump’s attorney asked in their filing that any limitations ordered by Merchan also be imposed on prosecutors. They accused Bragg of revealing information from sealed grand jury proceedings during a press conference on April 4, and in a “statement of facts” released by his office that day.
A source with knowledge of the Trump lawyers’ thinking said they believe the D.A.’s proposed protective order would implement a double standard.
“They think they should be able to put out grand jury material and their witnesses, like Michael Cohen, should be able to talk about it nonstop, but President Trump shouldn’t be able to talk about it,” the source said.
Asked to comment, a spokesperson for Bragg pointed CBS News to his office’s April 24 protective order filing. A prosecutor for the office highlighted in the filing disparaging posts Trump made about Cohen —his former attorney who is a key witness in the case— and others involved in the investigation, as cause for requesting the order.
It is unclear if Merchan will issue a decision on the issue Thursday.
