Many argue that over-zealous prosecutors have targeted Donald Trump for political reasons. He is the first former president to face criminal charges in a court of law. His supporters are quite willing to ignore the fact that Trump’s actions, inactions, and words may cross ethical, legal, and criminal lines.
Does he only have himself to blame? As I indicated in a recent post, A Never Again Moment in History, one might easily argue that Judge Juan Merchan has treated Trump with kid gloves -- far better than he might treat an average citizen for similar behavior.
For legal context, please permit me to recount an old war story. At a motion hearing early in my legal career, a judge made an outrageous ruling in favor of my opponent. This was a critical case in my practice, and the ruling was wrong on the law and wrong on the facts. I was not silent about my displeasure. The judge had heard enough and decided to shut me up. He warned me:
“Mr. Bello, if you don’t stop speaking this instant, I will find you in contempt of court.”
To which I replied:
“Your Honor, I have nothing but contempt for the court.”
I was that angry at his ridiculous ruling. It was the only time in a long career that I had harsh words with a judge. Not surprisingly, he pounded his gavel, found me in contempt, and ordered the bailiff to remove and transport me to the Wayne County Jail. As the bailiff approached, I calmed (panicked?) and wisely apologized for my outburst. The judge backed off. I avoided jail and was pleasantly surprised that I wasn’t fined. The point is that his threat accomplished its intended purpose: I shut my mouth. I took a more sensible approach in the following days and weeks—I appealed his ruling and won.
Compare that simple one-sentence episode with Donald Trump's multiple out-of-court statements. As reported in Rolling Stone Magazine, prosecutors argue that Trump has violated the gag order numerous times. Reports indicate Trump has used his cell phone in the courtroom (a direct violation of Judge Merchan’s order). The judge also reprimanded Trump for attempting to intimidate jurors. On April 13, Trump called Michael Cohen, a witness for the prosecution, “a disgraced attorney and felon.” Earlier, on April 11, in an ‘it takes one to know two’ moment, Trump called Cohen and a second witness, Stormy Daniels, “two sleazebags, who, with their lies and misrepresentations, cost our country dearly.” On April 18, Trump lashed out at the jury on Truth Social: “They are catching undercover liberal activists lying to the judge in order to get on the Trump jury.”
One must consider why any judge might issue a gag order to evaluate Trump's misbehavior properly. Typically, the order seeks to prevent prejudicial publicity that might influence jurors. Since Trump is a public figure, his comments require more scrutiny because anything he says receives widespread attention. While the judge has discretion in these cases, he must be impartial, consider the circumstances, and rule in the best interests of the case rather than any one party. Regardless of political position or public standing in the community, all individuals should be treated equally. Pursuing fair and impartial justice is paramount, not any participant's social or political standing.
Viewing Trump’s behavior as objectively as possible, comments like his are precisely what a gag order attempts to prevent. Judges do not want jurors intimidated or influenced by outrageous out-of-court statements. Think of any high-profile trial in recent memory. Has any defendant made public statements attacking the process, the judge (or the judge’s daughter), prosecutors, witnesses, and potential jurors?
I’ve been a lawyer for almost 50 years, and I have never witnessed a trial in which a defendant has misbehaved as severely or as often as Trump. On the other hand, we have seen and heard Daniels and especially Cohen appear on talk shows and podcasts, spouting their versions of the facts and attacking Trump.
Aren’t they subject to the same rules? Shouldn’t they be silent out of court, too? Of course, there is one huge difference: they aren’t the defendant in the case.
Judge Merchan recently promised that Trump would be held to the same standard as other defendants. I have not yet seen evidence that he will be faithful to his word. He held a hearing earlier this week to review Trump’s violations. An ordinary citizen would face penalties, fines, and even imprisonment. We shall see if, indeed, there is special treatment for Trump.
Please check out Mark Bello’s ripped-from-the-headlines legal thrillers, all available online at Amazon and other major online booksellers. He has quite the hero in Attorney Zachary Blake, who fights for justice on all fronts. His books are Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, Betrayal High, Supreme Betrayal, Betrayal at the Border, You Have the Right to Remain Silent, The Final Steps – A Harbor Springs Cozy Legal Mystery, and his latest, The Anti-Semite Next Door. Also, he’s written a wonderful children’s book about bullying, “Happy Jack, Sad Jack,” and he's just announced the pre-order release of "Love Hate Law," a new legal romance novel. For more info, just check markmbello.com.