Former President Donald Trump has until June 14 to respond to the prosecution’s motion for a gag order in his classified documents handling case – as some law professors raise questions about the constitutionality of such gag orders.
“The problem is that the only court that seems to take the constitutional issues seriously is the Supreme Court, and getting to the Supreme Court is a long way away,” Syracuse University law professor Gregory Germain told Salon.
Trump has faced gag orders in legal proceedings in New York and Washington, D.C. – and was hit with fines for violating orders in his criminal hush-money trial and his civil fraud case. He's repeatedly called the gag orders unconstitutional and challenged them in court.
But Germain said a gag order is less likely in the classified documents handling case.
“Judge Cannon’s very unlikely to grant it just because she seems like she’s pretty biased in terms of Trump’s favor,” he told Salon.
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Lyrissa Lidsky, constitutional law professor at the University of Florida, said Cannon could also point to First Amendment concerns.
“We're very, very suspicious of gag orders, because they go into place before there's been a full adjudication of wrongfulness of the speech at issue,” Lidsky said. “Gag orders are rarely resorted to because they're presumptively unconstitutional under the First Amendment.”
The 40 charges against Trump, stemming from the discovery of classified documents at Mar-a-Lago after he left office, have been stuck in limbo since Aileen Cannon indefinitely pushed back the trial date in May.
An unsealed legal filing from the Trump defense described the FBI’s 2022 raid on Mar-a-Lago and led to Trump making claims that President Joe Biden was “locked & loaded ready to take me out."
But there is no evidence of a plot to kill Trump, as The Associated Press reported. Trump was pointing to boilerplate language about “use of deadly force” in the operations order for the Mar-a-Lago raid. It’s standard to include that language – which sets out Department of Justice use-of-force policy – in those orders.
Lidsky said judges overseeing the Trump cases are faced with a “very unusual scenario.”
“It's the rare criminal defendant that continues........