WASHINGTON (TND) — Ex-Trump attorney Michael Cohen took the stand Monday in former President Trump’s hush money trial, testifying that Trump urged him to buy Stormy Daniels’ silence in 2016.
Throughout the trial, Trump’s gag order has been in the spotlight. For context, a gag order – formally known as a non-dissemination order – is when a judge prohibits people involved in a case from speaking about it publicly if it is believed that doing so could threaten the proceedings. These orders typically apply to everyone involved – including lawyers, witnesses, defendants and plaintiffs – but can sometimes only apply to specific participants.
Judge Juan Merchan imposed Trump’s gag order in March, banning the former president from making public statements about witnesses, counsel, jurors, prosecutors, court staff or their family members. The gag order does not mention the District Attorney or the judge himself.
Trump violated his gag order ten times and, as a result, has been fined $10,000. Most of the violations were based on social media posts attacking Michael Cohen and Stormy Daniels. Trump also criticized the jury in an interview and a social media post, suggesting it is made up of Democrats.
If Trump violates the order again, he could face jail time.
Since gag orders are made on a case-by-case basis, the judge denied a request to impose one on Michael Cohen. The judge did, however, ask Cohen to stop publicly commenting on the case.
This raises the question of whether gag orders are constitutional. First Amendment rights guarantee free speech, but there are also Sixth Amendment rights to a fair and speedy trial. Sometimes these two rights can be at odds with each other, especially in high-profile cases.
The Supreme Court has found that some gag orders violate free speech rights, while others do not.
Since there is not one specific test that can be applied, determining whether a gag order violates free speech considers what the order is protecting, who it restricts and other factors of the trial.
In 1966, the Supreme Court overruled a defendant’s murder conviction, holding that the trial was unfair because information about jurors and witnesses was publicized, jurors were allowed to make phone calls and the judge even told a report he thought the defendant was guilty.
Similarly, in 1976, the Supreme Court ruled that a gag order banning the local media from reporting details of a murder trial violated the First Amendment.
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