Editor’s Note: Robert C. Gottlieb is the founder of the law firm, Robert C. Gottlieb & Associates PLLC. He is former prosecutor in the Manhattan District Attorney’s office and has been a criminal defense lawyer for 38 years. The opinions expressed here are his own. Read more opinion at CNN.
CNN and other news organizations have reported, citing people familiar with the matter, that a Manhattan grand jury indicted the Trump Organization and its Chief Financial Officer, Allen Weisselberg, on Wednesday. It’s now a safe bet to expect former President Donald Trump to go on his usual rampage – an all-out verbal assault on prosecutors, judges and the court in his desperate attempt to discredit the case. Make no mistake about it, Shakespeare was right when he wrote, “What’s past is prologue.”
One must have been sleeping through the Trump presidency not to expect that a wounded Trump will do and say anything to prejudice the fair administration of justice. Now, the district attorney should ask the judge at the arraignment to impose a strict gag order restraining Trump, the Trump family, prosecutors, defense attorneys and all witnesses from making any public statements intended to prevent a fair trial, free of prejudice. A violation of a gag order is the crime of contempt of a court order with a potential one year in jail.
I have personally been involved in a number of high-profile cases where gag orders were imposed, and they are not unusual in high publicity criminal cases. Harvey Weinstein, Michael Jackson, Paul Manafort are just a few of the recent cases in which judges restricted attorneys, defendants and witnesses from speaking publicly.
From the US Supreme Court to state and federal district courts, judges have affirmed their inherent power to control their courtroom by forbidding participants from making public statements whenever they have a “reasonable likelihood of tending to prevent a fair trial, free of prejudice and properly administered.” The New York Rules of Professional Conduct for attorneys codifies restrictions on lawyers’ out of court statements by prohibiting an attorney from making any statement “ordinarily likely to prejudice materially” a criminal matter – namely, influencing jurors to affect the outcome of a trial. Without a court-ordered gag order, Trump will likely set out to demonize witnesses, cooperators, prosecutors and the judge in his effort to delegitimize the entire criminal justice system, a bedrock American institution that reflects this nation’s principle of impartial justice that is based on evidence and truth.
We don’t have to guess what Trump will do and say in his assault on justice. On the eve of the indictment being filed, he gave us a clear sign of his strategy when he released the following statement:
“Radical Left New York City and State Prosecutors, who have let murderers, rapists, drug dealers, and all other forms of crime skyrocket to record levels, and who have just announced that they will be releasing hundreds of people involved in violent crime back onto the streets without retribution of any kind, are rude, nasty, and totally biased in the way they are treating lawyers, representatives, and some of the wonderful long-term employees and people within the Trump Organization.”
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Trump has proven time and time again that he will set out to destroy anyone who dares oppose him. Just ask California Federal Judge Gonzalo Curiel whose reputation Trump smeared when he falsely accused the judge of being incapable of impartially deciding immigration cases because of his Mexican heritage. Ask Dr. Anthony Fauci, Robert Mueller, General Jim Mattis or General Mark Milley if opposing Trump presents a real danger to their safety and reputation.
Unless he is prevented from commenting on the case and evidence against his company and associates and is restrained from assaulting the integrity of those who oppose him, count this nation’s commitment to a fair trial, free of prejudice as Trump’s next victim.