Alvin Bragg Wants Trump To Stay Under Gag Order Even After Conviction

Democratic Manhattan District Alvin Bragg’s office defended on Wednesday keeping former President Donald Trump under his gag order, requesting that it stay in place at least through Trump’s sentencing hearing in late July and any post-trial motions.

Trump attorney’s asked Judge Juan Merchan on Tuesday to lift the order, writing in a letter that the “concerns articulated by the government and the Court do not justify restrictions on the First Amendment rights of President Trump” now that the trial has concluded. Prosecutors disagreed, responding that the order was intended to protect more than just the trial proceedings.

“As the People will explain more fully in our written opposition to defendant’s forthcoming motion, these interests have not abated, and the Court has an obligation to protect the integrity of these proceedings and the fair administration of justice at least through the sentencing hearing and the resolution of any post-trial motion,” prosecutor Matthew Colangelo, who formerly was a top official in the Biden’s Department of Justice (DOJ), wrote in the letter to Merchan.

Trump is scheduled to be sentenced on July 19, just days before the Republican National Convention. (RELATED: There’s A Long List Of Reasons To Toss Trump’s Conviction — But His Appeal Venue Isn’t The Friendliest)

JUST IN: Manhattan DA is opposing Trump’s push to lift the gag order in his hush money case.

They say it should remain live through sentencing/post-trial motions. pic.twitter.com/6N1XUhw2VJ

Trump’s attorneys argued Tuesday that Trump needs to have “unrestrained campaign advocacy” in light of Biden’s comments about the trial verdict and decision to hold a campaign event outside of the courthouse, along with continued attacks on Trump levied by witnesses like Stormy Daniels and Michael Cohen.

The briefing schedule prosecutors proposed to consider lifting the order, which follows the schedule for other post-trial motions, would likely ensure the order stays in place during the debate if it is adopted. Prosecutors asked for a June 13 deadline for the defense’s motion and a June 27 deadline for the prosecution’s final response.

I think NY State Appellate Court is going to stall every step of the way. Here's an excellent video discussion of the appeals process and on SCOTUS hearing the appeal.

Appealing the #TrumpTrial - Can it get to SCOTUS quickly? Can he get a stay of his sentence?

Here's the transcript from the video (some very interesting stuff--transcript provided by ChatGPT).

Alright, welcome back to Inside the Law. I'm your host, Philip Holloway. I wanted to take a few minutes—this is a special episode—because I want to talk about the appeal from the conviction last week in the New York prosecution of former President Donald Trump. To fully understand the unusual steps that might need to be taken, it's first important to understand the way things ordinarily work.
The first thing that happens is you have a trial. If there's a conviction, after sentencing, you can file what's called a notice of appeal. When you take a criminal case up on appeal, you have to argue all of the reasons you think the trial court should be reversed and why you think your conviction should be overturned. You'll have lots of different bases for that, such as the judge made this mistake, made that mistake, there was a lack of due process for this reason and that reason. You want to put all of your legal reasons in the appeal so that they can all be addressed.
In the state system, here we're talking about the state of New York, you go first through the state appeals system. Normally, in New York, that would be the appellate division. You put your appeal together, and once the court gets the record together (that's the entire transcript, all of the evidence, everything that happened), all of that has to be transmitted to the appeals court. Obviously, for a long trial, it can take a long time just to prepare the transcripts. Once the entire record goes up, the parties submit their briefs, there might be oral arguments, and then you're going to have the appeals decision.
In every criminal case, you have one appeal of right. By that, I mean you automatically have a right to appeal the case one level. In this case, it's up to the appellate division, which is the mid-level court in New York. Believe it or not, the trial court is called the Supreme Court; the highest court in the state is called the Court of Appeals. Anyway, in the middle, we have the appellate division. You have a right to get the case to the appellate division. If the appellate division affirms the conviction—in other words, if you take your case up and you lose that first round—you have the right to ask the highest court in the state, in this case, the Court of Appeals, to accept your appeal. It's discretionary. If you lose again, let's say they take your case and you lose again in the highest court in the state, then you have the right to petition to the Supreme Court of the United States. Again, it's discretionary. By the way, they take very, very, very few of the appeals that they are asked to take that come from the highest court of each of the states. You have to have some federal basis of jurisdiction as well. So if you argue that there is a federal constitutional violation or some other federal issue at stake, then the Supreme Court may have jurisdiction, but they still have to agree that it's an important enough case for them to take it.
That's what we call the direct appeal process. Now there's another type of appeal that we call the collateral attack. Once you finish your state-level appeals, if you still want to further appeal your conviction, you can file what's called a petition for habeas corpus relief in the federal district court. That's the trial court in the federal system. Of course, you then have to also allege some federal jurisdiction there, and then you start over in a trial court. There's no jury; it's not like you're having another trial, but you do have a judge, and it's the federal district court. You ask that judge to reverse your conviction. If you lose there, or even if you win, the other side could appeal it. So that can go from the federal trial court level to the U.S. Court of Appeals level. From there, if you want to appeal from that, again, there's another potential discretionary appeal up to the U.S. Supreme Court.
Now that's a very simplified overview of the direct appeal through the state system that could wind up in the Supreme Court, and then you've got the collateral or parallel attack over in the federal system. You see this typically in death penalty cases where the appeals go on and on and on. They last forever—10, 15 years. Well, this is why. Because you get these long appeals that take forever, they go through multiple levels, and then they switch over and go through the federal habeas system as well.
Alright, so that's how it typically works. There's been lots of discussion on social media about why can't the Supreme Court just go ahead and do something? Why can't they just intervene? In that regard, let me share with you something that I posted on Twitter, and it got a lot of response from people, and I felt like I should maybe expand upon this a little bit.
I posted that SCOTUS cannot simply intervene; that's not how it works. It works the way I just told you in most cases. You've got to have the appeal brought to the Supreme Court in some appropriate legal vehicle. I went on to say in the thread that I'm seeing lots of comments and replies that argue that SCOTUS will "intervene" or some words to that effect. Well, for the reasons I just went over, the Supreme Court of the United States must have a case properly brought to it; it cannot act on its own.
Now, there are some creative, long-shot theories that are floating around on how to get it up to the Supreme Court so that they can act quickly. Let's switch over and take a look at one of those.
We've got Mark Levin. Mark Levin posted the other day. He's thinking out loud. He says the issue is how to get out of the New York system and bring the case to the Supreme Court, which may or may not take it up. That is why I look to Bush v. Gore, where the Supreme Court decided to step in because it was a presidential election. There was another court involved—the Florida Supreme Court—and it was that court that the Supreme Court believed was violating the Equal Protection Clause. That was the doctrine it settled on given the unequal treatment of voters.
We're probably talking about semantics here, but when he says that the Supreme Court decided to "step in," well, that's not exactly how I would have put it. As he correctly points out, there was another court involved—the Florida Supreme Court—and the Florida Supreme Court had made a ruling. It said there's going to be more recounts and all this. We're in the middle of a presidential election, and the Bush campaign brought the issue to the Supreme Court. So it's not like the Supreme Court intervened; the Supreme Court ruled on something that was properly brought to it. It was an appeal—a discretionary appeal brought from the highest court in the state, in this case, Florida. It was taken up on this discretionary appeal to the U.S. Supreme Court. They decided to take it, and of course, the ruling is what it is, and it was all done rather quickly because of the timing, because we're in the middle of an election dispute here. But again, this was an appeals process that played itself out really quickly, but it was still an appeal directly from the highest court in the state of Florida.
Mark Levin goes on to point out in New York, you would file the notice of appeal, ask for a stay of the trial court, and seek expedited review. He's right about that. One of the things you're going to do once you're sentenced is you're going to want to get relief from that sentence. You want that sentence perhaps to be stayed. You want the court of appeals or the appellate division to order that your sentence be stayed.
What does this mean in the context of the Trump case? We were talking the other day. Look, you've got possibly jail. Obviously, there's a great reason you want to stay that; you don't want your client in jail. If your client happens to be the nominee for the President of the United States for one of the major parties, you, of course, need to have your candidate able to campaign and do all the things that are attendant to that candidacy. Also, if your candidate wins, then he can't be the president from jail. There are a lot of practical reasons you would want to have a stay of that sentence.
The way that works is the lawyers simply go to a judge on the court of appeals or the appellate division in New York and ask for an appeal bond. They may not get it, but assuming they can find a judge that is amenable and says, "Look, I agree that we need to hit the pause button on this sentence until we can fully develop and fully litigate the issues and the merits of the appeal," they're going to go ahead and issue this stay or do an appeal bond or something along those lines. Once the sentence is paused or stayed, then the appeals process becomes much less frantic. The urgency kind of goes away because if there's no sentence that's going to be served, even if it's probation or house arrest (those types of sentences also infringe on the liberty of the accused), and in this case, we've got the presidential election which affects all people in America and impacts the federal system of government, there are a lot of reasons why you don't want the personal liberty of the candidate, the nominee, or potentially the new president-elect to be subject to the whims of a probation officer or even a judge in the state court or any other court. You want to seek a stay.
I just don't know how you're going to get the entire case on the merits of the appeal—in other words, asking for my conviction to be reversed because the judge committed reversible error. That takes a long time to properly frame and to litigate. Again, you've got to have transcripts and briefing and all these things that have to take place before a court can rule on it. If the appellate division of the New York State appeals process says, "We're not going to stay or hit the pause button on this," what can we do next?
I don't think you can run from the lower court in New York directly to the U.S. Supreme Court, except maybe in some rare circumstance where you seek an emergency stay from the U.S. Supreme Court. What would you say in a motion to the Supreme Court? Well, you have to put your legal reasons together for why you need the Supreme Court to issue an emergency stay. I think the way you do that is you raise every argument that you can think of in terms of due process violations and also the issue of irreparable harm because if a person is in jail, that does irreparable harm to them. You want to make an argument about federal jurisdiction, such as something related to the Supremacy Clause or other clauses in the Constitution that might suggest this is really more of a federal issue than a state issue.
A long-shot theory, and again, this is very speculative, is to get creative and try to figure out a way to get to the Supreme Court on an emergency basis, maybe to get the Supreme Court to issue a stay of the sentence, and from there, to continue to litigate the merits of the underlying conviction on appeal through the state system. But ultimately, the Supreme Court may very well have to rule on some of these cases, especially if there are different cases in different states involving the same candidate. I just don't know how it's all going to work out, but it's going to be fascinating to watch.
Let's take a quick break and we'll be back to wrap up with a few final thoughts on Inside the Law.

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