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By Mandy Taheri
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Former federal prosecutor Glenn Kirschner says that while it may appear that presiding Judge Juan Merchan's partial lift on Donald Trump's gag order in his Manhattan criminal hush money case is a victory for the former president, it may "come back to bite" him.
A gag order was in place for Trump's New York criminal trial, prohibiting him from speaking about the witnesses, jurors, the judge, and their family members. He violated the order 10 times and was fined a total of $10,000 for the violations. After his tenth violation, Judge Merchan threatened jail time.
Late last month, a New York City jury convicted Trump, the presumptive Republican 2024 presidential nominee, on 34 charges of falsifying business records in connection with a hush money payment that Cohen, then Trump's attorney, made to former adult film actress Daniels before the 2016 election, allegedly to keep quiet about an affair she said they had. The case was brought by Manhattan District Attorney Alvin Bragg.
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Trump has maintained his innocence and says the case is politically motivated. He is the first former president convicted of felony crimes. Trump has already announced plans to appeal the verdict.
On Tuesday, Judge Merchan changed the gag order to allow Trump to make comments about witnesses, including the prosecution's witnesses Cohen and Daniels, and jurors involved in the criminal hush money trial. However, Trump cannot reveal the jurors' identities or their addresses, nor comment about court staffers, the prosecution team, and their families until after sentencing.
Trump is set to be sentenced by Judge Merchan on July 11, just days before the Republican National Convention where he's expected to accept the party's nomination. He faces possible jail time.
In a video posted to his YouTube channel on Wednesday, Kirschner, a former assistant U.S. attorney and a frequent Trump critic, said the partial lift of the gag order is "very concerning because we fear for the witnesses and the jurors and others," later adding that, "on the other hand it really is in accordance with the law."
Kirschner added that there's a "silver lining" to the rollback of the gag order, saying that if Trump starts "posting and saying things about the witnesses that are harassing and intimidating, threatening and perhaps even violence-inducing," it could potentially hurt his sentencing. According to Kirschner, an important consideration when sentencing is "what kind of danger does Donald Trump pose to others."
The MSNBC legal analyst continued that the prosecution could bring up Trump's potential behavior in the sentencing memorandum in a request for "imposing a period of incarceration to put a stop to the danger that Donald Trump poses," and that "judicial restraint is what it takes."
In a phone interview with Newsweek on Thursday, Kirschner said there is "absolutely" precedent for using social media posts and rhetoric in sentencing, especially because even when individuals delete potentially incriminating evidence of commentary, "there's no such thing as deleting an electronic footprint."
Kirschner said, "When we find things on social media that we believe are relevant to any sentencing issue...we package it up and offer it to the sentencing judge." He shared anecdotes of convicted individuals posting or saying something incriminating between their conviction and sentencing date, which then impacted their sentence.
He added that Judge Merchan will consider multiple factors, including deterrence and rehabilitation, regarding Trump's sentencing.
"One of the most important is deterrence," Kirschner told Newsweek, adding that there are two kinds of deterrence: "deterring the person who was just convicted to prevent him or her from committing the same or similar crimes in the future," and "even more importantly, particularly in the context of this case, general deterrence, and that is deterring others who might be considering going down the same path, committing the same or similar crimes that Trump committed."
Newsweek reached out to Kirschner and Trump's lawyer Todd Blanche for comment via email on Thursday.
Will Trump Go To Jail?
Legal analysts are divided on whether Trump is likely to serve jail time in this unprecedented situation.
Kirschner told Newsweek in an interview that while "it's so hard to say," he believes that he should be sentenced to a period of incarceration. "You could go through each principle of sentencing and they will militate in favor of a jail term for Donald Trump."
Adam Shlahet, director of the Brendan Moore Trial Advocacy Center at Fordham Law, said in an interview published by Salon earlier this month that he previously "thought that the judge sentencing him to incarceration was very unlikely," but now, "I'm thinking it's more likely."
On the other hand, Michael Moore, former U.S. attorney and legal analyst, previously told Newsweek in an email that the incarceration of Trump is not probable.
In terms of his possible sentence, Moore said, "While some type of supervision, whether it be in a state facility or in home confinement, is possible I don't think it's likely. When coupled with the logistical complications that exist when dealing with a former president, I just don't think jail time is likely."
Fordham Law School professor Cheryl Bader told Newsweek in a phone interview earlier this month how difficult it is to know the likely sentence, saying, "Nobody knows except for perhaps Judge Merchan, and even he may not have made up his mind at this time."
Bader believes "the odds are unlikely that he will serve" a jail sentence while noting that "it is possible the judge could sentence him to house arrest. In addition to this being Trump's first offense and its nonviolent nature, she also noted that his "advanced age" (78) makes prison time unlikely.
Tonight, Trump and President Joe Biden will face off for the first presidential debate of this election cycle, with another scheduled in September. The presidential race remains very tight, with FiveThirtyEight's national poll aggregator showing Trump leading Biden by 0.1 points on Thursday, a 0.3 flip from Biden's lead on Tuesday.
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