Opinion: Did Trump’s Legal Spokesperson Violate the Terms of His Gag Order?

Photo Illustration by Luis G. Rendon/The Daily Beast/Reuters
Photo Illustration by Luis G. Rendon/The Daily Beast/Reuters

The bombshell testimony of Stormy Daniels in Donald Trump’s election interference case was certainly dramatic, but other events that took place may mean we are closer than ever to the former president facing the prospect of jail time.

It was the statements made by one of Trump’s lawyers that could land him an evening on Rikers Island, and also potentially get that attorney in ethical trouble herself.

The coverage of the trial focused mostly on Stephanie Clifford’s (aka Stormy Daniels’) testimony, including quite specific allegations related to her supposed interactions with the former president.

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But before the trial began that day, Justice Juan Merchan, the judge presiding over the trial, issued his second contempt order, fining the former president $1,000 for what the judge found was an additional violation of the gag order in the case. This was on top of the $9,000 he previously fined Trump for nine earlier violations of that order. The judge also indicated that further violations of the order by Trump would leave Merchan few options other than incarceration to ensure the integrity of the proceedings.

In addition, while Ms. Clifford was testifying, Mr. Trump was supposedly muttering under his breath and cursing at times, loud and frequently enough that it drew a rebuke from the judge.

But it was after the hearing concluded that other statements, those made by Alina Habba, one of Trump’s lawyers who has been described as his “legal spokesperson,” might result in the most serious response yet from the judge—and could put Habba herself in jeopardy of facing some kind of professional discipline.

Appearing on Fox News Tuesday night, Ms. Habba made the following statement, speaking of Ms. Daniels: “When you have inconsistencies with any witness, it speaks volumes… When you pick people who are not credible, it speaks volumes.”

Had Trump made such a statement, it would have certainly violated the gag order. But that order also says Trump cannot violate its terms through a surrogate.

One of the things the judge is going to have to decide is whether there was any coordination between Trump and Habba in the issuance of this statement. That is, did she say this at Trump’s direction?

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But regardless of whether Habba’s actions constituted a vicarious violation of the order by Trump, her statement also raises questions about her own legal ethical obligations.

New York’s Rules of Professional Conduct prohibit a lawyer from making “an extrajudicial statement” (i.e., a statement out of court) to the press that “will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Habba’s statement, impugning the credibility of a witness, is the type of statement that the rules say is “ordinarily” an example of one that “is likely to prejudice materially an adjudicative proceeding.”

In such a situation, a judge can both sanction the lawyer for these statements, regardless of whether there is a gag order in place, and also refer the matter to attorney disciplinary bodies to consider whether other punishment is appropriate.

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There are at least two important potential avenues for Habba to avoid a charge that she has engaged in unprofessional conduct.

First, the rule gives a lawyer some leeway if they are responding to adverse publicity contained in an extrajudicial statement made by another. In other words, had DA Bragg held a press conference where he impugned the credibility of one of Trump’s witnesses (not that we’ve heard from any yet), then one of Trump’s attorneys would have the right to respond to such attacks, if motivated by a desire to correct the record.

However, it’s not apparent that Ms. Habba’s statement was in response to any inappropriate adverse publicity initiated by someone else. The mere fact that Ms. Clifford gave testimony that the Trump team might have found damaging is not enough to trigger this “safe harbor,” as it is known.

Second, the rule only applies to a lawyer “who is participating in or has participated in a criminal or civil matter.” This is a very important caveat and it is the main reason why lawyers fill the guest lists of countless hours of cable news shows every night and are pretty much free to opine on any topic related to a case, provided they’re not involved in the case itself.

It does not appear at first blush that Habba is formally representing Trump in the hush money trial in court, but she has certainly represented him in other cases. And she has been identified as Trump’s legal spokesperson.

What is the scope of the work she is performing for Trump? Is she participating in the day-to-day strategy sessions related to the case? Is she assisting the trial attorneys with trial tactics? Such conduct would certainly suggest she is “participating” in the matter.

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Because of these questions, it seems there are some facts that Justice Merchan may want to investigate, should he consider her statements as contrary to his order and threatening the integrity of the proceeding.

He can hold an evidentiary hearing on the issue of Habba’s statements. Was she acting at the direction of Mr. Trump? When she made the statement, was she doing so in her capacity as Mr. Trump’s lawyer?

If the answer to the first of these is “yes,” then Trump himself is going to have some significant explaining to do. If the answer to the second is also “yes,” then Habba herself will be in hot water.

If she was truly acting on her own and not serving in a representational capacity, then her conduct might be questionable, but is not a violation of the order, nor is it necessarily formally unprofessional. But we do not have all the facts. Justice Merchan could try to get to the bottom of them, and he probably should and will.

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