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Manhattan DA seeks gag order on Trump in criminal hush money case, citing voluminous threats to office staff

Originally Published: 26 FEB 24 14:02 ET

Updated: 26 FEB 24 18:16 ET

By Kara Scannell and Lauren del Valle, CNN

(CNN) — Manhattan prosecutors are asking the judge overseeing Donald Trump’s criminal case involving hush money payments to impose a gag order to stop the former president from publicly disparaging potential witnesses and others involved in the trial.

The gag order request was one of many pretrial motions filed by the district attorney’s office and Trump ahead of the trial, including requests to play the “Access Hollywood” recording of Trump and to bar testimony from his former lawyer, Michael Cohen.

Trump is accused in a 34-count indictment of falsifying business records as part of a cover-up to conceal hush money payments before the 2016 election to adult film star Stormy Daniels, who alleged she had an affair with Trump.

Trump denies the affair and has pleaded not guilty.

Jury selection is set to begin on March 25.

Here’s a rundown of Monday’s filings:

Gag order ask is in response to threats to DA’s office

Trump’s comments have already resulted in hundreds of threats to the office, prosecutors said in a motion Monday.

“Defendant has a long history of making public and inflammatory remarks about the participants in various judicial proceedings against him, including jurors, witnesses, lawyers, and court staff,” the Manhattan district attorney’s office wrote. “Those remarks, as well as the inevitable reactions they incite from defendant’s followers and allies, pose a significant and imminent threat to the orderly administration of this criminal proceeding and a substantial likelihood of causing material prejudice.”

Prosecutors are not asking the judge to block Trump from speaking about District Attorney Alvin Bragg.

They are seeking state Supreme Court Judge Juan Merchan to gag Trump from making comments about potential witnesses, lawyers involved in the case other than the DA, court staff, and family members of lawyers and staff. In addition, prosecutors also asked the judge to prevent Trump from making public statements about any prospective juror in the trial.

“The U.S. Court of Appeals for the D.C. Circuit recently upheld restrictions on defendant’s extrajudicial speech that are essentially identical to the ones requested by the People here. This Court should accordingly grant the narrowly tailored protective measures sought here,” Bragg’s office wrote.

Trump campaign spokesman Steven Cheung described the request as a “2-tiered system of justice implemented against President Trump.”

A gag order, Cheung added, “would impose an unconstitutional infringement on President Trump’s First Amendment rights, including his ability to defend himself, and the rights of all Americans to hear from President Trump.”

DA wants to restrict Trump from knowing too much about jurors

The gag order motion was one of several filed publicly on Monday. Prosecutors also asked the judge to restrict Trump from knowing the addresses of jurors. They are not asking for an anonymous jury.

“Defendant’s conduct in this and other matters – including his extensive history of attacking jurors in other proceedings – presents a significant risk of juror harassment and intimidation that warrants reasonable protective measures to ensure the integrity of these proceedings, minimize obstacles to jury selection, and protect juror safety,” prosecutors wrote in the motion.

“This Court should also put defendant on notice that he will forfeit any statutory right he may have to access juror names if he engages in any conduct that threatens the safety and integrity of the jury or the jury-selection process,” they added.

‘Access Hollywood’ tape back in play

Yet another jury in New York might consider the widely reported Access Hollywood Tape in which Trump can be heard making vulgar comments about his treatment of women to show host Billy Bush.

Manhattan prosecutors say the tape – played at one of Trump’s federal civil cases with writer E Jean Carroll – is highly relevant to Trump’s motive for the hush money payments to Daniels in this case because the nondisclosure agreement with the adult film star was drafted within days of when the tape was made public in the fall of 2016.

“The motivation to complete the Daniels non-disclosure agreement cannot be understood without reference to the desperation facing defendant and his campaign in the wake of the tape’s release,” the prosecution’s motion says.

Trump’s lawyers argue the tape is inflammatory and unrelated to Daniels. It should not be entered into evidence “because there will be no dispute about the contact or the resulting connection between Cohen and Clifford’s attorney on October 10, 2016.”

Prosecutors say at trial they will show evidence of Trump’s scheme to influence the 2016 presidential election “by identifying and purchasing negative information about him to suppress its publication and benefit his electoral prospects.”

They want to introduce the tape and other sexual assault allegations against Trump that surfaced around that time in 2016 to show the jury Trump’s history of “prior bad acts” they say are “inextricably interwoven” with that narrative.

Trump attacks Michael Cohen testimony

Trump’s lawyers want the judge to bar any testimony from Cohen, who is at the crux of the prosecution’s case. The defense filing lists Cohen’s run-ins with the truth in court proceedings and congressional hearings since his falling out with Trump after the election.

“Michael Cohen is a liar. He recently committed perjury, on the stand and under oath, at a civil trial involving President Trump. If his public statements are any indication, he plans to do so again at this criminal trial,” Trump’s lawyers wrote.

The prosecution – which intends to call Cohen to testify about his pivotal role in the alleged hush money scheme – wants to limit cross-examination from Trump’s lawyers about Cohen’s credibility, specifically asking Merchan to exclude any evidence from Cohen’s interactions with federal prosecutors that address his lying or false statements he made to federal agencies, their motion says.

Campaign finance law at issue

The DA’s office also asked Merchan to exclude Trump defense arguments that he’s being selectively prosecuted by Bragg and Trump’s claims that the Federal Election Commission (FEC) dismissed administrative complaints against Trump in connection to these allegations.

According to the DA’s pretrial motion, the FEC dismissed the complaints without investigating because the agency faced an extensive enforcement backlog and Cohen had already been punished in his federal criminal case, which included a guilty plea related his role in this alleged scheme.

Trump’s lawyers argued in his motion that the alleged payments to Daniels and Karen McDougal could not be considered Federal Election Campaign Act (FECA) violations because they were not campaign contributions and were not made with the purpose of influencing the election.

Bragg’s office wants to block a potential defense witness who would testify about federal campaign finance law. Prosecutors say testimony from Trump’s witness, whom he’s paying $1,200 per hour, is irrelevant to Trump’s alleged intent to defraud and would confuse and mislead the jury. The prosecution’s motion argues Trump’s witness can’t testify because expert witnesses aren’t permitted to testify about legal conclusions at trial.

The prosecution also wants to bar Trump’s legal team from arguing several threads common in his frequent public attacks on the DA’s office and this case, including his claims that the US Department of Justice declined to prosecute Trump in connection to these allegations. Trump was president and so immune from prosecution in 2018 when Cohen pleaded guilty to federal charges related to the hush money scheme. They also don’t want the jury to hear about former assistant district attorney’s Mark Pomerantz’s book that discusses this case and has served as frequent fodder for Trump’s defense.

Threats against Bragg skyrocket

Threats against Bragg and the office’s staff went from nearly nonexistent in 2022 to a volume that the district attorney’s security detail could no longer assess on their own, causing them to bring in additional assistance from the New York Police Department’s Threat Assessment & Protection Unit.

In 2022, the first year Bragg was district attorney, one out of 483 threats picked up by the NYPD’s Threat Assessment & Protection Unit involved threats to the district attorney, his family, or employees, according to an affidavit from Nicholas Pistilli, commanding officer of the security detail for Bragg and a sergeant in the NYPD.

The following year, when a grand jury was hearing witness testimony and ultimately indicted Trump, 89 of 577 threats picked up by TAPU were made against Bragg, the office, or his family, Pistilli said.

By March 20, 2023, when there were daily news reports about the investigation and grand jury, “the volume of threatening, harassing, or offensive calls and emails increased significantly, exceeding the capacity of the DA Office’s investigators and NYPD detective detailed to the DA office” and the work was then shifted to TAPU for assessment.

Twice that year, the district attorney’s office received letters with white powder containing messages. One said, “Alvin: I’m going to kill you.” The other letter included imagines of Bragg and Trump and the words ‘you will be sorry,’” according to Pistilli.

“According to the DA Office’s IT systems, at its peak, in March 2023, more than 600 emails and phone calls received by the DA’s office were forwarded for security review; this represents a small subset of the calls and emails received by the office relating to People v. Trump. Around this time, the emails, calls and text messages received were directed not just to the DA or to the Office generally, but also to senior members of the DA executive team and ADAs publicly associated with People v. Trump, via both Office email or phone and personal email and phone,” Pistilli wrote.

Trump motions to block Weisselberg and Giuliani statements

Trump’s attorneys are also trying to block prosecutors from using two of Trump’s longtime associates against him – former chief financial officer of the Trump Organization Allen Weisselberg and Rudy Giuliani, who has served as Trump’s personal attorney in recent years.

Trump’s lawyers argue prosecutors should not be allowed to use handwritten notes Weisselberg took during a January 2017 meeting with Cohen. Weisselberg was involved in the hush money payment and subsequent reimbursement to Cohen, which began soon after the meeting. Trump’s lawyers say the notes shouldn’t be allowed in without Weisselberg’s testimony and argued that he is not on the district attorney’s witness list.

Prosecutors are in talks with Weisselberg to potentially plead guilty to perjury relating to testimony he gave in the New York attorney general’s civil fraud case. As part of the discussions, Weisselberg is not expected to testify against Trump at the trial.  However, a guilty plea involving lying could impair Weisselberg’s credibility before a jury if he was called by Trump’s legal team.

Trump’s lawyers are also seeking to exclude television appearances by Rudy Giuliani, Trump’s personal attorney, who in 2018 said that Trump repaid Cohen for the payment to Daniels and knew about the “general arrangement that Michael would take care of things like this.”

“Giuliani was neither authorized to make the statements in question” or acting pursuant to an employment agreement, Trump’s lawyers wrote, saying the comments were “off script, without authority, and without preparation or sufficient knowledge of the underlying facts.”

Trump’s lawyers said Trump subsequently said Giuliani wasn’t on the legal team at the time of his statements and Giuliani later backtracked, saying he didn’t know when Trump learned about the payments to Cohen.

This story has been updated with additional details.

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