Just weeks ahead of his Manhattan criminal trial, former President Donald Trump attacked the presiding judge's daughter a second time this week on Wednesday, falsely claiming she used an image of him behind bars as a profile picture on social media.
That image "makes it completely impossible for me to get a fair trial,” Trump wrote on Truth Social before bemoaning the gag order Judge Juan Merchan imposed on him Tuesday and claiming it violated his First Amendment right to free speech.
But one problem, among others, is that Trump's claim about Merchan's daughter isn't correct, according to the New York State Court system.
While the handle did previously belong to the judge's daughter, Loren Merchan, she deleted it around a year ago, a court spokesman told The New York Times. An unknown user now owns the account, and its profile picture changed to a childhood portrait of Vice President Kamala Harris in the wake of Trump's Tuesday assail of the judge.
“The X, formerly Twitter, account being attributed to Judge Merchan’s daughter no longer belongs to her,” Al Baker, the New York Office of Court Administration spokesman, told the Times. “It is not linked to her email address, nor has she posted under that screen name since she deleted the account. Rather, it represents the reconstitution, last April, and manipulation of an account she long ago abandoned.”
Even then, Loren Merchan posting such an image on social media would not make it "impossible" for Trump to have a fair trial as he claimed, Catherine Ross, a Constitutional law professor at George Washington University, told Salon.
"The family members of judges are not deprived of their own First Amendment rights simply because of their status as family members. Much more would need to be shown to tie her views to his," she explained, citing the "much more extreme example" of Supreme Court Justice Clarence Thomas sitting on cases "involving his wife."
The former president's latest social media griping came a day after Judge Merchan granted the district attorney's request for a gag order on Trump, prohibiting him from going after witnesses, prosecutors, jurors and court staff. The order, however, does not cover the judge and his family, and the former president took full advantage of that by assailing Judge Merchan in another post demanding he remove himself from the case.
While Trump's promotion of online hoaxes is far from new, his choice to levy the apparently false claims about the judge's daughter weeks before trial marks an escalation on his part, the Times notes.
That choice is neither "wise" nor a "good move," Loyola Law School professor Laurie Levenson told Salon, because antagonizing the judge is "just a recipe for sort of getting in the worst position possible during the trial."
"To me it shows that he's worried," she said. "What he's trying to do is cushion himself if he does get convicted by saying, 'I never had a fair shot because [of] the judge and the judge's daughter,' so it does make him look like he's running a bit scared."
"You don't have to attack a judge if you're confident in your case," she added.
Trump and his legal team's standing with the judge has already been riddled with contention. His attempt at delaying the trial's start date over the Justice Department's evidence dump this month earned the former president a sharp rebuke from Merchan during Monday's hearing in the case, which centers on what prosecutors say was Trump's attempt to cover up a 2006 affair with an adult film actress during after his 2016 presidential campaign.
Even with his allegations about Loren Merchan debunked, Trump's other claims about the gag order and attacks of the judge are just "noise" and "not legally relevant," David Schultz, a professor of political science and legal studies at Hamline University, told Salon, adding he suspects Trump is pushing the claims as a "fundraising strategy" to appeal to donors.
The law requires judges to balance "First Amendment interests" with the "security and the integrity" of the court proceedings when considering a gag order, Levenson explained, emphasizing that ones intended to protect "the integrity of jurors and witnesses" don't violate First Amendment rights "because you want those people to be free to testify openly and truthfully." Gag orders, then, are only to be implemented in the face of a "compelling reason" and are "narrowly constructed."
"Donald Trump is a walking, talking compelling reason," Levenson said, noting that his social media posts only support the argument for a gag order and any continued attempts to attack the judge or his family contribute to a record that judges across Trump's other criminal cases could cite in imposing orders of their own.
Despite his feelings over its imposition, the gag order in his Manhattan trial is "actually protecting Donald Trump" from himself, Schultz added.
"If Trump were to go out and attack the witnesses — comment upon them — he would run the risk of witness tampering, or perhaps other charges," he said.
How Judge Merchan may react to Trump's social media attacks of him and his daughter is unclear. Ross expects and "hopes" Judge Merchan will impose another gag order that would include him and his family members as well as a warning that "the next violation" will precipitate additional conditions "on release for a set period" pending the end of the trial, "up to and including confinement."
Levenson and Schultz, however, don't expect such action from the court at this point. If the court "thinks Trump is 'misbehaving'" in a way that doesn't have an impact on how to manage the proceedings, Judge Merchan will "move forward," Levenson said, noting that the judge won't cut Trump any breaks, especially as he decides on other matters in the case.
The court may "expand its gag order" if it sees a real safety concern come from the posts given how the former president's social media posts have previously driven "people from the fringes to say and do things" on his behalf, she added.
But Judge Merchan, Schultz speculated, could also allow Trump to continue attacking him or his daughter, who served as an executive at digital marketing agency Authentic Campaigns, which works with Democratic candidates, because it "takes away another one of Trump's grounds for appeal" on a claim that the judge was showing bias against him and preventing from fully exercising his First Amendment rights.
"I think he's going to let him, at this point, say whatever he wants about him and his daughter," Schultz said, noting Judge Merchan may caution Trump's attorneys if his comments escalate. "I think he's going to potentially let Trump hang himself," he added.
