And the award for stupidest take on the Trump trial that didn’t risk anyone’s life (STTTDRAL) goes to … ALAN DERSHOWITZ!
Come on down, Professor!
“The gag order is unconstitutional. You cannot prevent a defendant from attacking the witnesses, from attacking the judge’s daughter, if the judge’s daughter could be a basis for disqualification!” he shouted dyspeptically on Sean Hannity’s show.
This would probably be news to the DC Circuit, which ruled in December that prohibiting a criminal defendant from “making or directing others to make public statements about known or reasonably foreseeable witnesses concerning their potential participation in the investigation or in this criminal proceeding” does not offend the Constitution when those statements pose a “substantial likelihood of material prejudice” to the integrity of the trial. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1070 (1991).
Justice Juan Merchan, who is presiding over Trump’s false business records trial in New York, explicitly copied the DC Circuit’s ruling to ensure that his own gag order would pass Constitutional muster, and, when Trump appealed, the First Judicial Department refused to enjoin it. But other than that, you’re doing amazing, sweetie!
And now we honor the runner up in the STTTDRAL category.
The winner is …
… drumroll, please …
OMG IT’S ALAN DERSHOWITZ AGAIN! What are the odds!
“There is a statute that gives him the right to leave the court any day, but the statute says QUOTE ‘in the absence of an objection by the people.” Dersh continued. “In other words, the prosecution has a veto over the judge’s decision whether to allow him to leave the courtroom in any given day.” Dersh continued.
“That is unconstitutional, and this case ought to be challenged,” he yelled, gesticulating wildly. “There ought to be a motion made by Trump’s lawyers immediately under Section 340.50 in which the judge has the power to allow him to leave the courtroom and campaign, but only if the prosecution agrees to it, which is clearly unconstitutional.”
Consent motions are “clearly unconstitutional” now? Who knew!
In fact, someone else made a similar argument in 2019, arguing that his conviction on a traffic ticket should be voided because he wasn’t allowed to waive his appearance in court.
Justice Phillip Roche vacated the defendant’s plea, but not in a way that helps Dersh’s pal Donny:
Statutory law provides this right of waiver to all charges filed in local court including misdemeanor complaints, prosecutor’s information and simplified informations which, by definition, include simplified traffic informations (CPL 340.10(1); 1.20(5)(a)). In contrast to felony charges which, by statute, require the defendant to be present in court for trial (CPL 260.20), the statutory law governing traffic infractions in local court provides a procedure by which a defendant may waive his personal appearance at trial (CPL 340.50(2)). [Emphasis added.]
So let’s just see what § 260.20 has to say about a defendant’s presence at a jury trial, shall we?
A defendant must be personally present during the trial of an
indictment; provided, however, that a defendant who conducts himself in
so disorderly and disruptive a manner that his trial cannot be carried
on with him in the courtroom may be removed from the courtroom if, after
he has been warned by the court that he will be removed if he continues
such conduct, he continues to engage in such conduct.
Tune in next week on Hannity where the world’s foremost Constitution Knower will explain how § 260.20 entitles a defendant to become so disruptive by snoring that the court lacks discretion to keep him there against his will.
People v. Trump [Case Documents via Just Security]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
