Serious Trouble
Serious Trouble
Donald Trump's First Gag Order

Donald Trump's First Gag Order

Judge Arthur Engoron orders Trump not to attack his court staff; the planned May trial date in the documents case looks dicey; three new defamation lawsuits interest us

Dear listeners,

Donald Trump withdrew his lawsuit against Michael Cohen so he wouldn’t have to sit for a deposition on the holiday, but Columbus Day didn’t stop us from bringing you a new episode of Serious Trouble.

This week, we look at Trump’s first gag order: The former president’s gratuitous social media attacks against Judge Arthur Engoron’s law clerk enraged the judge and led him to order Trump (and also the other parties in the New York AG’s civil fraud lawsuit) not to publicly criticize his staff. We’ve previously discussed how poorly developed the case law is on the constitutionality of gag orders, but this one’s limited scope — focusing on commentary that is likely to disrupt the court and unlikely to have significant value even for the defendants — puts Judge Engoron on comfortable legal ground. After all, the case law about gag orders is made by judges, and they’re all likely to be sympathetic to the idea that it’s hard to run a case when a very prominent party is attacking your very non-prominent employees.

We also talk about scheduling. Trump has asked Judge Aileen Cannon to delay his criminal trial in the documents case, which is currently set for May. Ken thinks Trump is likely to get a delay sooner or later — and would be likely to do so even if he did not have a judge who was especially sympathetic to him. Going to trial next spring was always aggressive given the complexity of the case, the classified material involved, and the fact that Trump already faces another complex federal prosecution that’s set to start next March (and that probably won’t be delayed, given the comments Judge Tanya Chutkan has made about her own scheduling intentions).

We talk about defamation litigation — Rudy Giuliani is suing Joe Biden for calling him a Russian pawn, a California college student is suing Elon Musk for accusing him of being a fake white nationalist, and a Georgia voter is suing Dinesh D’Souza for calling him a ballot mule. The first two cases look weak, but the third one could be quite hazardous for D’Souza and his co-defendants, who may be the next defendants to learn that promoting election-theft lies about real people and real companies can prove very expensive. On that note, we look at more signs of financial difficulty facing Giuliani and Mike Lindell, who have also been on the receiving end of such defamation suits.

And we look briefly at the Georgia RICO case, where one minor defendant is pleading guilty and cooperating — though it remains to be seen how that will effect the cases DA Fani Willis can present against more prominent defendants.

We hope you enjoy the episode.


Episode links and resources:

Click here for a transcript of this episode.

Here is Trump’s motion to delay the documents case until November 2024.

Trump has asked a federal court to dismiss his lawsuit against Michael Cohen — but claims the move is temporary.

Rudy Giuliani faces an IRS lien against his Florida condo.

Mike Lindell’s defamation lawyers want to withdraw because they haven’t been paid.

Those defamation suits:

Serious Trouble
Serious Trouble
An irreverent podcast about the law from Josh Barro and Ken White.
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Josh Barro
Ken White