Hush-money prosecutors say Trump's gag order should no longer protect Michael Cohen and Stormy Daniels — but want to keep other parts of it

  • Prosecutors urged Donald Trump's hush-money judge to keep most of his gag order.

  • But they agreed that Trump could now attack witnesses like Michael Cohen and Stormy Daniels.

  • They warned Trump could still be found liable for defamation, citing the two E. Jean Carroll verdicts against him.

The prosecutors in Donald Trump's criminal hush-money case say they're OK with the former president resuming his attacks on Michael Cohen, Stormy Daniels, and other witnesses in the case — but that they want the judge to maintain other parts of his gag order.

In a court filing Friday morning, the Manhattan District Attorney's Office urged the judge overseeing the case not to terminate the gag order ahead of Trump's July 11 sentencing hearing.

Trump shouldn't be able to freely attack jurors, court staff, prosecution staff, and their families — all of whom have been the subject of numerous violent threats, they wrote.

But they agreed with Trump's lawyers that he should no longer be banned from talking about trial witnesses, which included nemeses like Cohen and Daniels, now that the trial is over.

"Now that the jury has delivered a verdict, however, the compelling interest in protecting the witnesses' ability to testify without interference is no longer present," prosecutors wrote.

A jury found Trump guilty of 34 felony counts of falsifying business records in May, finding he illegally disguised hush-money payments to Stormy Daniels, a porn star who says she had an affair with him, ahead of the 2016 presidential election.

Ahead of the trial, the presiding judge, New York Supreme Court Justice Juan Merchan, issued a gag order restricting how Trump could talk about the case in public. They forbade Trump from talking about court staff, prosecution, staff, their families, jurors, witnesses, and people who would likely be called to the witness stand.

Merchan found that Trump violated the orders on 10 different occasions during the trial, and threatened him with jail if he did it again.

"You are the former President of the United States and possibly the next President, as well," Merchan told Trump at a hearing. "There are many reasons why incarceration is truly a last resort for me. To take that step would be disruptive to these proceedings, which I imagine you want to end as quickly as possible."

A courtroom sketch of Michael Cohen while under questioning by prosecutor Susan Hoffinger at Donald Trump's Manhattan hush-money trial.
A courtroom sketch of Michael Cohen while under questioning by prosecutor Susan Hoffinger at Donald Trump's Manhattan hush-money trial.REUTERS/Jane Rosenberg

After the jury verdict, Trump's lead defense attorney, Todd Blanche, asked for the gag order to be lifted, saying the First Amendment's protections should take precedence.

Blanche claimed the order prevented Trump from responding to social media criticism from Daniels and Cohen — Trump's former personal lawyer who was the key witness in the trial — as well as President Joe Biden as the June 27 presidential debate looms.

"Predictably, Cohen and Daniels have continued to assail President Trump, and his qualifications for office in an election he is winning, based on their deeply biased views about the evidence and to make even more money for themselves," Blanche wrote. "More troubling, President Biden, his campaign staff, and his surrogates have gleefully entered the fray by commenting on this case and the jury's verdict in a course of conduct that Biden initiated outside the courthouse during defense summations."

In Friday's filing, prosecutors for the Manhattan District Attorney's Office said Blanche's claim that Trump couldn't respond to Biden's political attacks was "categorically false."

(Trump criticized Biden in near-daily courthouse hallway speeches during the trial.)

They also wrote that violent threats from Trump's supporters to district attorney staff members have continued to flow.

According to an affidavit from a New York Police Department officer, included as an exhibit in Friday's motion, police have logged 61 "actionable threats" against Manhattan District Attorney Alvin Bragg, his family, and other staff members of the district attorney's office between April and June, in addition to hundreds of emails. The prosecutors in the case will continue to be engaged in Trump's appeal, so they should continue to be protected by the gag order, prosecutors wrote.

Just because the gag order should no longer restrict Trump's attacks on witnesses doesn't mean they won't have other protections, prosecutors wrote.

Trump could still be liable for harassment or defamation, they noted, citing his court losses against E. Jean Carroll, and Rudy Giuliani's defamation trial loss at the hands of two Georgia election workers.

"This change of circumstance does not mean that defendant has carte blanche to resume his reprehensible practice of publicly attacking individuals involved in litigation against him," they wrote.

"But protections against such attacks will now derive from separate criminal-law protections against harassment or similar misconduct," prosecutors continued, citing the relevant legal statute, "as well as the prospect of civil liability for defamation, intentional infliction of emotional distress, or similar claims."

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