Trump may have found a way to dodge his gag order without moving his lips

Former President Donald Trump is not known for keeping his impulses in check. He has chafed hard when put under constraints, including the gag order he’s under as his criminal trial continues in New York. Luckily for him, he has found a way to speak his mind without moving his lips — or posting on his Truth Social site.

An increasing number of Republican officials have descended on Manhattan to show their support for the alleged criminal who will head the GOP ticket in November. For some, it has been seen as an audition for a potential vice presidential nomination. Silent support for Trump in the courtroom apparently isn’t enough. In this new supply of surrogates, Trump has found a way to dodge the gag order, once again all but daring the judge overseeing the trial to punish him.

Under the terms of the gag order from Judge Juan Merchan, Trump is barred from launching broadsides against “known or reasonably foreseeable witnesses,” jurors and prospective jurors, members of the prosecution (other than Manhattan District Attorney Alvin Bragg) and their staff members and the families of Merchan and the prosecutors. You’d think that would be an easy task, but Merchan has already found that Trump has violated that gag order 10 times, fining him $10,000 in the process. The most recent ruling saw the judge hold up the possibility of jail time for the former president should an 11th infraction follow.

That threat is one that might carry less weight as the trial enters its later stages, but it appears to have prompted a shift in tactics from Trump and his allies. Republican officials have queued up outside the courtroom to take the swipes that Trump can’t risk anymore. They have included attacks on Merchan’s daughter, a political consultant who has worked for Democrats, whom Trump railed against before a revised gag order prohibited attacks on the judge’s family. They’ve also pilloried the witness testifying this week, former Trump fixer Michael Cohen, in ways that would see Trump in hot water with the judge.

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And to be clear, this isn’t some random motley assortment of Republican backbenchers; many of them have been MAGA A-listers who’ve made pilgrimages to show their devotion. Last week, Sens. Tim Scott of South Carolina and Rick Scott of Florida were present. On Monday, Sens. JD Vance and Tommy Tuberville of Ohio joined Rep. Nicole Malliotakis of New York. And on Tuesday, House Speaker Mike Johnson, R-La., appeared with two former presidential candidates, North Dakota Gov. Doug Burgum and Vivek Ramaswamy.

And the rhetoric from them has only increased since Cohen took the stand Monday. Vance and Tuberville have been especially direct about their aims in attending the proceedings. Vance on Monday told reporters in New York that he was there to say the things Trump “is prevented from saying, which is a disgrace.” Tuberville went even further Tuesday in an interview on Newsmax: “Hopefully we’ll have more and more senators and congressmen go up every day to represent him and be able to go out and overcome this gag order, and that’s one of the reasons we went — is to be able to speak our piece for President Trump.”

Here’s why that’s a big deal: The gag order also bars Trump from “directing others” to throw the verbal bombs he’s prevented from tossing. The question then becomes whether these Republicans are merely expressing their own opinions or whether they’re acting as a host of quasi-Metatrons, delivering the words that their higher authority cannot by himself.

It’s a difficult question but one that, as ever, Trump has helpfully simplified with his own statements. “I do have a lot of surrogates, and they are speaking very beautifully,” Trump said Tuesday when asked whether he was telling his supporters to speak out on his behalf. “They come from all over Washington, and they’re highly respected, and they think this is the biggest scam they’ve ever seen.” 

There’s some plausible deniability baked into Trump’s phrasing — but just how much leeway it grants him is for Merchan to decide. As my colleague Jordan Rubin noted Tuesday, Trump “has at least endorsed words that would violate the gag order if he said them. But does that mean that he’s directing them — as opposed to, say, encouraging or condoning them or the like?” Rubin also predicted that both prosecutors, who will rest their case once Cohen’s testimony concludes, and Merchan may just want to push through to the trial’s end as quickly as possible, rather than interrupt the proceedings to deal with the potential headache of holding Trump accountable for his surrogates’ actions.

I can see why it might prove difficult to prove that Trump has specifically scripted the words his minions are mouthing. As Cohen’s past testimony has shown, Trump has a way of making his wishes known without anything so crude as a direct order. Absent a smoking gun, it’s quite possible that’s what’s happening here. In a sense, that’s more concerning than Trump’s willfully disregarding the gag order. Instead, these visits are yet another example of how willing — if not eager — so many people are to debase themselves and bring themselves down to Trump’s level without even being asked.