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FORMER PRESIDENT TRUMP’S PETITION FOR A WRIT OF PROHIBITION CHALLENGING A RESTRAINING ORDER RESTRICTING HIS ABILITY TO MAKE STATEMENTS DIRECTED AT POTENTIAL WITNESSES IN A CRIMINAL TRIAL DENIED (FIRST DEPT). ​

The First Department determined the restraining order restricting former President Donald Trump’s speech during his criminal trial was valid. Trump’s petition for a writ of prohibition was denied:

The Federal Restraining Order is nearly identical to the Restraining Order issued against petitioner in the underlying criminal case … .

Petitioner brings this petition because he disagrees with where the circuit court drew the line in balancing the competing considerations of his First Amendment rights to free expression and the effective functioning of the judicial, prosecutorial and defense processes … . Weighing these concerns, the circuit court ultimately concluded that, given the record, the court had “a duty to act proactively to prevent the creation of an atmosphere of fear or intimidation aimed at preventing trial participants and staff from performing their functions within the trial process” … . This Court adopts the reasoning in the circuit court’s Federal Restraining Order Decision.

The Federal Restraining Order Decision properly found that the order was necessary under the circumstances, holding that “Trump’s documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process” … . First, the circuit court concluded that petitioner’s directed statements at potential witnesses concerning their participation in the criminal proceeding posed a significant and imminent threat to their willingness to participate fully and candidly, and that courts have a duty to shield witnesses from influences that could affect their testimony and undermine the integrity of the trial process … . Justice Merchan properly determined that petitioner’s public statements posed a significant threat to the integrity of the testimony of witnesses and potential witnesses in this case as well. Matter of Trump v Merchan, 2024 NY Slip Op 02680, First Dept 5-14-24

Practice Point: A court has the power to restrict speech by a defendant in a criminal trial which is directed at potential trial witnesses and which could threaten the witnesses’ willingness to testify.

 

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