Trump New York trial: Do statements by other Republicans violate gag order?

U.S. Rep. Byron Donalds, R-Fla, is one of many Trump-aligned lawmakers who traveled to the Manhattan courthouse to support the former president and express disgust about the criminal case against him. 

"I am not under a gag order, so I am going to tell the truth," Donalds, who is reportedly a vice presidential contender, told ABC News on May 14.

Donalds criticized one prosecutor and called the judge’s daughter a "Democrat operative." Other Republican lawmakers who joined Trump in Manhattan — including Sens. Rick Scott of Florida, J.D. Vance of Ohio and Tommy Tuberville of Alabama — have made comments about people involved in the trial. 

A gag order from Judge Juan Merchan bars Trump from making statements about witnesses, jurors, counsel, court staff or their families and "making or directing others to make public statements" about those people. (Trump is allowed to make statements about Merchan and Manhattan District Attorney Alvin Bragg.) Trump has been found in violation 10 times.

But pundits on the left and social media users have pointed to statements from Trump’s courtroom guests and allies as potential violations of the gag order. 

We interviewed several former prosecutors who cast doubt on those claims. 

Trump is charged with 34 counts of falsifying business records in an alleged scheme to cover up a hush money payment to adult film actor Stormy Daniels before the 2016 presidential election.

Sen. Tommy Tuberville, R-Ala., left, and Sen. J.D. Vance, R-Ohio, arrive May 13, 2024, at a press conference across the street from the Manhattan criminal court. (AP)

Tuberville told Newsmax on May 14 he accompanied Trump to court partly to "overcome this gag order" and "to be able to speak our piece for President Trump."

Tuberville and other Republican lawmakers have made comments targeting Michael Cohen, a key witness and former Trump personal lawyer. Cohen was convicted of tax evasion, making false statements to a federally insured bank and breaching campaign finance rules and sentenced to three years in prison. 

After attending court May 13, Tuberville questioned Cohen’s credibility. "How can you be convinced by somebody that is a serial liar? I mean there should be no reason that anyone should listen to this guy," Tuberville said.

Vance, who attended Trump’s trial alongside Tuberville, also talked about Cohen.

"This guy is a convicted felon who admitted in his testimony that he secretly recorded his former employer, that he only did it once allegedly and that this was supposed to help his former employer Donald Trump," Vance told reporters outside the courthouse. 

Scott, who told Politico he was invited to Trump’s trial by a senior Trump campaign adviser, lashed out May 9 at the judge’s daughter, telling reporters outside the courtroom that she’s  "a political operative and raises money for Democrats." 

Juan Merchan’s daughter Loren Merchan has served as the president of Authentic, a digital marketing agency that lists Democratic clients, including the 2020 Biden-Harris campaign. Authentic has removed its staff page from its website and hasn’t responded to PolitiFact’s inquiries, so it is unclear whether Loren Merchan still holds that position.

"Everyone involved in this is part of the Democrat machine," Scott said May 12 on "Fox News Sunday," pointing to Juan Merchan, his daughter and one of Bragg’s prosecutors, Matthew Colangelo. Colangelo formerly worked for the New York state attorney general, and in that role, investigated the Trump Foundation and led lawsuits against the Trump administration.

Other Republican politicians including Florida Rep. Matt Gaetz, North Dakota Gov. Doug Burgum, Colorado Rep. Lauren Boebert, and attorneys general from Texas and Iowa also joined Trump in court. 

We interviewed five former prosecutors who said the Republican lawmakers’ statements would violate the gag order only if there is proof that Trump directed them. All expressed skepticism that a court would find such evidence.

"So long as Donald Trump is not provably directing others to make disparaging statements about such matters as Michael Cohen and his testimony, there is no violation of a gag order," said Kendall Coffey, former U.S. Attorney for the Southern District of Florida.

"Public officials have the right to express their opinions and the First Amendment protects their speech as much as anyone else’s," Coffey said. "It seems difficult to envision proceedings by state prosecuting authorities to try to penetrate the email and text communications of federally elected public officials without very significant evidence of puppet strings being pulled by the Trump camp."

Evan Gotlob, a former federal prosecutor in Pennsylvania and Boston, said prosecutors would have to find evidence that Trump directed one of these politicians to comment, "which they are not going to find." 

Gotlob said he doesn’t foresee a judge approving, or prosecutors making a request to seek phone records or recordings of private conversations involving Trump. 

"It’s not worth it — it turns it into more political charade than it already is," Gotlob said.

Stan Twardy, a former U.S. attorney in Connecticut, said he strongly doubts that senators would testify that Trump directed them to make statements.

"No politician on earth is going to admit that what he says is dictated by someone else  —  even if it were true, which in this case I very much doubt," said Bill Otis, former head of the appellate division of the U.S. Attorney’s Office for the Eastern District of Virginia and a former special counsel to former President George H.W. Bush. 

David Weinstein, a former Florida federal prosecutor and Miami-Dade prosecutor, said, "The problem is going to be, how in the world does the court prove Trump told these people to say all of this?"

Weinstein said the judge would have to bring Trump in and ask him, "‘Did you tell people to say this?’ To which he would say, ‘No, how stupid do you think I am?’"

PolitiFact Copy Chief Matthew Crowley contributed to this report. 

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