Prosecutors in President Trump’s hush-money case asked the presiding trial judge, Juan Merchan, to keep the gag order intact to protect jurors, court staff and family members, while agreeing to lift the restriction that bars Trump from attacking the witnesses. If the judge rules within the next few days, Trump could be free to denounce his former lawyer, Michael Cohen, and the adult film star Stormy Daniels on the debate stage, when he faces President Biden on June 27.

In their 19 page long motion, lawyers for the Manhattan district attorney, Alvin Bragg, who successfully brought the criminal hush-money case against Trump, wrote on Friday that “the relevant question” regarding the gag order imposed by the judge on Trump since before the trial began, “is not whether the orders prevent defendant from speaking freely about this case—they never have—but instead whether there is reason to preserve the orders’ narrowly tailored protections on specific participants in this criminal proceeding.” Prosecutors argued that “those reasons still exist for several of the orders’ protections, though not all.” 

If the judge agrees to the prosecution’s request, Trump will still be barred from criticizing Judge Merchan’s adult daughter, Loren Merchan, whose work for top Democrats has been a centerpiece of the defense’s argument that the judge is biased and the trial is not a serious legal proceeding.

On March 26, Judge Merchan issued a gag order against Trump, prohibiting him from making public comments about witnesses, jurors, court staff, counsel, and their family members, after prosecutors asked for protection, citing evidence that showed Trump supporters were making violent threats against participants who Trump had publicly criticized. On April 1, the judge extended the order to include his own family members, and those of the district attorney, after Trump had continuously attacked his daughter, Ms.Merchan, a Democrat, who has done campaign work for some of Trump’s most committed opponents such as Vice President Harris and Congressman Adam Schiff.

On Friday prosecutors wrote that the gag order should remain in effect to protect jurors, court staff, counsel and their family members, and also the family members of the judge and of the district attorney, not including Judge Merchan and Mr. Bragg themselves. Regarding the witnesses, prosecutors “agree that this provision no longer needs to be enforced.” 

Trump has repeatedly complained that the gag order has stripped him of his “Constitutional Right to Free Speech” by proscribing him from making public comments about two key witnesses in the case, Cohen and Stormy Daniels, whose real name is Stephanie Clifford, while they are allowed to publicly slander him. Both Ms. Clifford and Cohen have been frequently  criticizing and mocking Trump both on social and mainstream media, along with monetizing their connections to the 45th president. Cohen, who served a modest prison sentence due to conduct stemming from his work for Trump, has an active presence on TikTok, where his videos have garnered more than a million likes. Ms. Clifford recently gave an interview to London’s Daily Mirror in which she joked that Trump should be stripped from playing golf as part of his sentence (she also repeated her assertion that he should go to prison). 

For his part, prior to the gag order, Trump had been prolific in the anthropomorphic epithets he’s thrown at Cohen and Ms. Clifford, calling his former lawyer “a rat” and the porn star “horse face,” among other imprecations.

He’s been hankering to insult them again, dancing just on the edge of the order in recent months when he called Cohen and Ms. Clifford “sleaze bags” without directly naming them, and also pointed out, without naming him, that Cohen admitted in court that he’d stolen from the Trump Organization. 

Last week, Trump’s defense attorneys asked the judge to remove the entire gag order, arguing that now that the trial had been concluded there was no justification to keep the order intact, especially since their client, “who remains the leading candidate in the 2024 election,” was heading into his first debate on June 27. 

“Now that the trial is concluded, the concerns articulated by the government and the Court do not justify continued restrictions on the First Amendment rights,” Trump’s attorneys Todd Blanche and Emil Bove wrote in a pre-motion letter on June 4, adding that “debate on the qualifications of candidates is at the core of our electoral process and the First Amendment freedoms, not at the edges.” 

In their formal motion, filed a week later, the defense further argued that the district attorney was intentionally trying to keep Trump gagged during the debate by delaying their response. “The District Attorney’s efforts to delay filing an opposition to this motion are transparently political and shameful,” defense attorneys argued, and aimed at pushing the “Court’s consideration of the motion until just after the presidential debate.”

Were Trump still gagged on debate night, he would risk being jailed for contempt of court, should he address Cohen or Ms. Clifford or the jury during the debate. When Judge Merchan fined Trump for violating the gag order, a total amount of $10,000 for ten separate violations, he specifically mentioned incarceration as a threat hanging over the 45th president’s head. 

But in their answer, prosecutors now deny any intention to restrict Trump’s free speech at the debate, referring to the post-trial motion schedule that both parties had agreed on after Trump was convicted on May 30. Prosecutors also rejected Trump’s claim that “the District Attorney is acting in concert with defendant’s electoral opponent and an unspecified ‘cast of associates’ in an effort to restrict defendant’s speech at an upcoming presidential debate.” 

An affidavit, attached to the motion, given by a sergeant for the New York Police Department, and a commanding officer of the security detail for Mr. Bragg, Nicholas Pistilli, stated that since the beginning of this year, the NYPD’s Threat Assessment & Protection Unit (“TAPU”) had logged 61 threats against the district attorney, his family, or his employees, some of which included death threats. 

“For example,” the affidavit reads,”threat cases logged in 2024 included language: ‘we will kill you all’…’you are dead [expletive]’; ‘Your life is done’… Threat cases were also logged for [an online] post showing sniper sights on people involved in this case or a family member of such a person; and a post disclosing the home address of a DA Office employee,” a noxious act known as “doxxing.”  

The issue of the violent threats made to people who Trump publicly attacks is not new and appears to be one of the principal reasons why courts continue to deny Trump’s appeals of various gag orders in the various cases against him, as New York’s highest court, the Court of Appeals, did on Tuesday, when it rejected to hear Trump’s request to appeal the gag order in the hush-money case.   

Defense lawyers have argued that Trump should not be held accountable for the actions of third parties; however, the evidence has shown again and again that the threats increase as soon as Trump posts negative statements about someone on social media or makes disparaging comments during his press conferences. In another case, the civil fraud trial held last winter, the judge’s principal law clerk, Allison Greenfield, also received a large number of hateful comments and threats to her personal cell phone, many of which were said to be antisemitic, after Trump and his lawyers repeatedly criticized her for bias, “co-judging,” and “rolling her eyes.”

In their Friday filing, prosecutors argued that portions of the gag order were necessary given Trump’s “singular history of inflammatory and threatening public statements,” as well as efforts by his supporters to “identify jurors and threaten violence against … ”

“Since the verdict in this case, defendant has not exempted the jurors from his alarming rhetoric that he would have ‘every right’ to seek retribution as president against the participants in this trial as a consequence of his conviction because ’sometimes revenge can be justified,” the filing states about the hush-money case.

Trump was convicted on 34 felony counts on May 30, making him the first former president in the history of America with a felony conviction. Mr. Bragg charged Trump with falsification of business records in a scheme to interfere with the 2016 election. At the heart of the case was a $130,000 hush-money payment Cohen made to Ms. Clifford in 2016 to buy her silence about her claim that she had a single sexual encounter with Trump at a celebrity golf tournament at Lake Tahoe in 2006. The prosecution accused Trump of directing Cohen to wire the money to Ms. Clifford and then disguising his reimbursement to Cohen as a legal fee. Trump denied all charges and says, he never had sex with Ms. Clifford. 

The logged 61 threats, prosecutors wrote, did not include the “more than 600 emails and phone calls received by the DA’s office were forwarded for security review,” nor the “bomb threats at the homes of two people involved in this case on April 15, 2024—the first day of trial,” nor the “terroristic mailings,” such as an envelope containing white powder with a note saying, “Alvin: I’m going to kill you.” 

Prosecutors also specifically addressed Trump’s criticism that his freedom of speech had been violated, writing that “nothing in the orders prohibits defendant from broadly criticizing the verdict, the criminal proceeding, the District Attorney, this Court, and more—and, indeed, defendant has engaged in a flood of such criticisms both during the trial and after the guilty verdict.” The principal concern of the gag order, prosecutors emphasized, was to protect “certain participants in this criminal proceeding from ‘threatening, inflammatory, [and] denigrating’ statements by defendant that this Court found would ‘risk impeding the orderly administration of this Court.’” 

Judge Merchan is expected to issue a ruling soon, probably before Trump’s debate with President Biden on June 27 at CNN’s studios at Atlanta, Georgia, in a critical battleground state Mr. Trump very narrowly lost in 2020.