Trump will debate Biden while still bound by gag orders. Here's what he can't say

Kevin Lamarque | Jay Paul | Reuters
  • Former President Donald Trump is set to face off against President Joe Biden Thursday evening in the first of two scheduled presidential debates.
  • Trump is still bound by multiple court-imposed gag orders that limit what he can say about his criminal and civil cases.
  • Judge Juan Merchan recently lifted part, but not all, of the gag order on Trump during the criminal hush money trial in New York.

When he faces President Joe Biden in Thursday's debate, former President Donald Trump will have to watch his tongue.

Trump is still bound by multiple court-imposed gag orders that limit what he can say about his sprawling portfolio of legal troubles.

Those restrictions could prove a hindrance for Trump if he is put on the spot about his recent felony conviction in New York, or the dozens of other criminal charges against him in state and federal courts.

They could also provide an opportunity for Biden, who has prepared for the first presidential debate in part by searching for ways to trip Trump up and get under his skin, according to NBC News.

The presumptive Republican nominee and the Democratic incumbent will both be expected to comply with host network CNN's rules, which empower the moderators to "ensure a civilized discussion."

The hush money gag order

Trump has grappled with the gag order applied by Manhattan Supreme Court Judge Juan Merchan during the ex-president's historic criminal hush money trial.

That court-ordered muzzle barred Trump from making public statements about witnesses or jurors in the case, or from speaking about lawyers and staff for the Manhattan district attorney's office and the court, plus any of their family members.

Trump violated Merchan's gag order 10 times during the trial, prompting the judge to hold him in contempt and even threaten to throw him in jail if he didn't stop.

Trump was convicted in late May on 34 counts of falsifying business records linked to a scheme to silence porn star Stormy Daniels from speaking before the 2016 election about an alleged one-night stand with Trump years earlier.

The gag order was not automatically lifted when the trial ended, and prosecutors for Manhattan District Attorney Alvin Bragg argued that Merchan should keep most of the restrictions in place until Trump is sentenced on July 11.

But Merchan on Tuesday partially lifted the order, allowing Trump to speak about trial witnesses and the jurors.

Trump still cannot discuss multiple categories of people related to the case. But he is now free to resume speaking out about Daniels and his former personal attorney, Michael Cohen, two key witnesses whom Trump has previously targeted in venomous terms.

Whether he will do so on Thursday remains to be seen. Sources familiar with Trump's debate prep told NBC that he is being advised to focus on core issues and policies. But "no one tells Donald what to do," one of those sources noted.

Lingering restrictions

The recent focus on Trump's hush money gag order has obscured the fact that at least two others still appear to be in effect.

Judge Arthur Engoron imposed a gag order on Trump in early October, on the second day of his civil business fraud case in Manhattan. Engoron barred Trump and other parties in the case from speaking about court personnel after the former president repeatedly disparaged the judge's principal law clerk.

Engoron in mid-February ordered Trump to pay hundreds of millions of dollars in fines and interest following the trial, in which New York Attorney General Letitia James accused Trump and others of lying on business records about his asset values in order to boost his net worth and score financial perks.

That judgment is on hold after Trump appealed the ruling and posted a reduced bond of $175 million. But Engoron's gag order is technically still in effect, as it contained no self-canceling mechanism and no request to lift it was filed after the trial ended.

Practically speaking, however, that gag order is unlikely to limit Trump during his debate with Biden. And if his remarks did violate its restrictions, there's no guarantee that Engoron's court would seek a punishment.

When CNBC called Engoron's court chambers to inquire about the gag order, a person responded, "Nobody's checked. You're the first person to ask."

Meanwhile, in Trump's criminal election interference case in Washington, D.C., federal court, Judge Tanya Chutkan restricted public statements about likely witnesses, court staff and related legal counsel including special counsel Jack Smith.

A federal appeals court narrowed that gag order in December, allowing Trump to resume speaking about Smith, who is prosecuting the former president in Washington and in his classified documents case in Florida.

The case in Washington is on pause while the Supreme Court weighs Trump's claim that he is immune from the criminal charges because he was president at the time the alleged crimes occurred.

But Chutkan, in her December order pausing the case, said she believed her court is still responsible for enforcing the modified gag order, or other measures it imposed "to safeguard the integrity of these proceedings."

A spokesperson for Chutkan's chambers did not immediately provide confirmation when asked by CNBC on Thursday if the gag order is still being enforced.

The high court's decision to take up the immunity question has threatened to push any possible trial past the November election. The court could issue its ruling as soon as Friday or Monday.

Meanwhile, Smith in the Florida case has asked Judge Aileen Cannon to slap a gag order on Trump after he spread the false claim that FBI agents were given the authority to assassinate him when they raided Mar-a-Lago in 2022. Cannon has yet to issue a ruling on that request.

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