Edge Nov 17, 2023
I moved to Mastodon.social

Earlier today, in Manhattan, Trump’s lawyers filed a petition in the New York Supreme Court’s Appellate Division, claiming the gag orders from Judge Arthur Engoron barring the former president from making public comments about the judge's staff were unconstitutional in nature.

The latest: The appellate court temporarily lifted the gag orders.

Here is what that means: The First Amendment issues are not as easy as others in these cases.

https://www.courthousenews.com/ny-judge-temporarily-lifts-gag-orders-in-trump-org-civil-fraud-case/

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NY judge temporarily lifts gag orders in Trump Org civil fraud case

Trump's team successfully argued the gag orders violated their First Amendment rights.

Nov 16, 2023 at 10:32pmWeb
Show threadI moved to Mastodon.socialNov 16, 2023

Here is the judge's order:
https://www.courthousenews.com/wp-content/uploads/2023/11/trump-gag-order-ruling.pdf

Basically, the court just said, "Considering the constitutional and statutory rights at issue, an interim stay is granted."

So far, in all the pre-trial motions filed by Trump and his pals, only two raise interesting (and hence close) issues: The gag order issues and Meadow's motion to remove to federal court.

The others have been slam dunks in the Trump and Friends Will Lose Department.

They may lose here too, but the issues are closer.

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Show threadI moved to Mastodon.socialNov 16, 2023

I've written about the First Amendment issues raised here and why the questions are not easy.

See, for example:

https://terikanefield.com/trump-gag-orders-and-the-first-amendment-its-complicated/

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Trump, Gag Orders, and the First Amendment - Teri Kanefield

First, some business As I announced in my last blog post, I have signed a contract to write a new book, so my blogging schedule has shifted from weekly to whenever. Meanwhile, I often post commentary and answer questions in the following places: Mastodon (I prefer Mastodon: There are no algorithms so less of a … Trump, Gag Orders, and the First Amendment Read More »

Teri Kanefield
Show threadGradientU0Nov 16, 2023
@Teri_Kanefield But, see Joan Lefkow as an example of the risks re Pat Robertson and Hal Turner calling for her death and potentially influencing the resulting double homicide.
Show threadUrban HermitNov 17, 2023

@Teri_Kanefield okay, I have read your explanation of the history and difficulties.

Trump wants to influence the court by saying things that are intimidating or influence others to intimidate the court, without consequence to himself.

I am not sure that the same court that protects our freedoms can endure a tolerance of this particular freedom.

Show threadI moved to Mastodon.socialNov 17, 2023
@Urban_Hermit the issue you raise has been with us since the start of the nation. They are not easy issues. The difference between Trump and other defendants is that most defendants try not to antagonize the judge. Most don’t bother appealing gag orders because they just shut up. That doesn’t make Trump’s appeals frivolous. I think I will add a few more comments about what James Madison called parchment barriers.
Show threadUrban HermitNov 17, 2023
@Teri_Kanefield thanks for tolerating my rambling. Sorry, I am just upset. In a democracy we have the responsibility to consider not just what has been legal, but what should be, and Trump obviously stresses that boundary. He is so awful and dangerous, by self admission, that it is hard not to say he has gone too far. He wouldn't be in court in so many cases if he hadn't crossed so many boundaries already.
Show threadUrban HermitNov 17, 2023

@Teri_Kanefield
I guess I am asking, if a man can inspire violence while maintaining direct deniability, is that legal right up to the point of a coup that demolishes that freedom loving court? Can the court not deploy "antibodies" to protect itself. Usually the court is always more powerful than the defendant. This is a man who thinks he can singularly demolished the freedom loving court by becoming president, again.

Obviously I am not a free speech absolutist, and I am okay with that.

Show threadDavid PeningtonNov 17, 2023
@Teri_Kanefield As usual, your article has changed my understand of the law & feelings about it. Thank you.
I do feel it's a pity that the appeals judge did not prioritise the harms of Trump's speech over protection of Trump's interests, & retain the gag until the appeal is heard, but you have me thinking that danger to witnesses is not directly part of this case, so it's only "harm to justice" inside this case that can be argued & that's relatively esoteric.
Sadly the law is very slow, eg I may soon be tried, 4 years after my alleged minor offence in Australia, and direct challenge to Trump's speech endangering witnesses would be very slow & expensive😪 & perhaps need a specific statute.
I was horrified to read the Georgia RICO case may not be finalised until after the next presidential election, but I have not verified that.
Show threadmkandle Nov 17, 2023
@Teri_Kanefield thank you for the explanation 😊
Show threadGrassroots JoeNov 17, 2023

@Teri_Kanefield

I was disappointed, but not surprised at the stay of Judge Chutkin's gag order, while limited and designed to protect the integrity of the trial, has sufficient ambiguities to warrant review and stay pending review.

I am both disappointed and surprised at this stay. Judge Engoron's gag order is narrow, clear and in response to a specific instance of stochastic terror.

I can understand the appellate court thinking it necessary to review the order, but not the stay.

Show threadOggieNov 17, 2023

@Teri_Kanefield
First off, as usual, thank you for providing really solid information.

Secondly, my biggest feeling with regards to this is honestly 'why does this matter to trump so much'. I get that there are some thorny issues, and then you clearly laid out why these issues are even trickier than I thought. But why it is of such import to him still confuses me a bit. Do you think it's just to 'score a win'?

I have difficulty believing -he- cares much about the principal.

Show threadI moved to Mastodon.socialNov 17, 2023

@Oggie

He is hardwired to fight, fight, fight.

That's why his supporters cherish him.

So he's just fighting because that's what he does.

Show thread(((JaneinNJ)))Nov 17, 2023
@Teri_Kanefield So grateful for the ongoing clarity that you share. Thank you!
Show threadeestileib (she/hers)Nov 16, 2023

@Teri_Kanefield

So is it an open question then whether I'm free to threaten and incite violence against the judge and her staff in my divorce proceedings?

Or is this a Trump-specific constitutional question?

Show threadI moved to Mastodon.socialNov 16, 2023

@eestileib

I put a link for you to read in the third Tweet.

I'd also suggest that you read the 6 part series I put on my blog. Please pay particular attention to the parts on the cynicism that results from a complex legal system, and the danger that poses to democracy.

Show threadAnde JacobsonNov 16, 2023

@Teri_Kanefield: The concern of course is that the stay will allow those targeted by Team Trump to face preventable dangers with the gag orders lifted while the First Amendment issues are sorted.

This isn't a question of what happens in other cases where somebody wants to make threats through their motions. This is about the demonstrated dangers that the threats that team Trump pose from their supporters' actions which prompted the government's motions for limited gag orders in the first place.

Just because it's going to be expensive to provide the protective details necessary shouldn't stop people from doing their jobs, though I bet that's part of the calculus in Trump's threats. If he makes it too cumbersome and expensive to prosecute him for his alleged illegal actions, the cases will magically go away in his mind.

Scary times indeed.

Show threadCynthia JonesNov 17, 2023
@goodreedAJ @Teri_Kanefield I think it was common for an organized mob to kill (or disappear) opponents. T has the biggest and most powerful mob our country has experienced. Most are not capable enough to do it, but eventually someone will and the judges will be partly responsible.
Show threadDean L. SurkinNov 16, 2023
@Teri_Kanefield I read that Trump has called for a citizen's arrest of the judge and the A.G. He now has 11 days to up the intensity of his attacks. I'm guessing that his behavior (and his followers' actions) over the next week and a half will justify the original gag order. I know the App Div made the right order, but I hope there will be no repercussions.
Show threadDrew KadelNov 17, 2023
@Teri_Kanefield Will Judge Engeron be able to shut up Trump's lawyers in the courtroom when they start complaining about notes and such? I mean, lots of what they're doing is disrupting the proceedings and baiting the judge, hoping to get him to do inadvisable stuff.
Show threadLeu2500Nov 17, 2023
@DrewKadel @Teri_Kanefield They’ve filed for a mistrial based on that.
Show threadCat WestNov 17, 2023
@Teri_Kanefield We need a law to stop those who would repeatedly solicit stochastic violence against their ‘enemies’.
Show threadAllan ChowNov 16, 2023
@Teri_Kanefield why lawyerss make so much money
Show threadMastodon MigrationNov 16, 2023

@Teri_Kanefield

Before reflexively posting hot takes on this development, please consider reading Teri's article linked in post 3 of the thread:

https://terikanefield.com/trump-gag-orders-and-the-first-amendment-its-complicated/

Matters of law are complex, and First Amendment issues are very tricky and involve lots of history. The law exists for all of us and understanding what is going on here requires an appreciation for nuance and complexity.

Trump, Gag Orders, and the First Amendment - Teri Kanefield

First, some business As I announced in my last blog post, I have signed a contract to write a new book, so my blogging schedule has shifted from weekly to whenever. Meanwhile, I often post commentary and answer questions in the following places: Mastodon (I prefer Mastodon: There are no algorithms so less of a … Trump, Gag Orders, and the First Amendment Read More »

Teri Kanefield
Show threadEvaNov 16, 2023
@Teri_Kanefield not right
Show threadNonya Bidniss 🥥🌴Nov 16, 2023
@Teri_Kanefield This man is immensely tedious. His endless abuse of the entire country needs to end. I truly hope the justice system makes that happen.
Show threadI moved to Mastodon.socialNov 17, 2023

@Nonya_Bidniss

The justice "system" cannot do that.

Please read my criminal law FAQ page. It's in the pinned post.

Show threadsandywb14Nov 16, 2023
@Teri_Kanefield How many people will be harmed because of this decision?
Show threadCitizenZNov 16, 2023
@Teri_Kanefield Are they going to wait until his cult attacks a judge, court official, or prosecutor before taking this shit seriously?
Show threadPamela EhnNov 17, 2023
@CitizenZ @Teri_Kanefield I don’t think this is due to a lack of taking the danger seriously. But in order to make sure shit sticks and doesn’t get appealed (or if appealed that it will fail), Trump has to be treated absolutely fairly, which means that his First Amendment rights (which are not absolute) are carefully balanced with the welfare of the community. These are complex issues that need to be handled with some deliberation. The last thing we’d want is to give Trump grounds for an appeal if his First Amendment rights are infringed. This doesn’t mean he has full leeway to run his mouth. There is a legal case (tainting the jury pool, for example) for limiting Trump’s speech. But judges have been careful to write gag orders on narrow lines because they do not want to be appealed. The reason why we are in uncharted territory is because, as Teri points out, most defendants under a gag order STFU and don’t defy them.