Former President Donald Trump falsely claimed Thursday that he is not allowed to testify in his own defense at a criminal trial in Manhattan over his alleged falsification of business records.
After leaving the courtroom for the day, Trump told reporters, “I’m not allowed to testify. I’m under a gag order. I guess, right?” He added, “I’m not allowed to testify, because this judge, who’s totally conflicted, has me under an unconstitutional gag order.” He continued by complaining that he’s “not allowed to talk” even when others attack him, then said again, “So I’m not allowed to testify because of an unconstitutional gag order.”
Facts First: Trump’s claim is false. He is allowed to testify at the trial; the decision is entirely up to him. Judge Juan Merchan’s gag order, which narrowly restricts his out-of-court speech, does not in any way stop him from testifying. The gag order also does not broadly prevent Trump from talking; he is permitted to speak to the media, speak at campaign events, attack President Joe Biden and other political opponents, and even attack Merchan and the Manhattan district attorney behind the case.
Rather, the gag order forbids Trump from three specific categories of speech:
1) Speaking publicly or directing others to speak publicly about known or foreseeable witnesses, specifically about their participation in the case
2) Speaking publicly or directing others to speak publicly about prosecutors (other than Manhattan District Attorney Alvin Bragg), members of the district attorney’s staff and the court staff, or family members of any of these people including Bragg, if those statements are made with the intent to interfere with the case
3) Speaking publicly or directing others to speak publicly about jurors or prospective jurors
Trump has repeatedly made the gag order sound far broader than it is. He claimed at a Wednesday campaign rally in Michigan that “I’m not even supposed to be, I would say, talking to you, because he gagged me” – though the gag order actually says nothing to prevent him from making a campaign speech.
Merchan wrote in the gag order: “Defendant has a constitutional right to speak to the American voters freely, and to defend himself publicly.”
Trump’s public stance on whether he will testify has varied. After declaring before the trial started that “I’m testifying,” he said in a television interview last week that he would testify “if it’s necessary.” Thursday was the first time he has publicly claimed he is not permitted to testify.
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