Donald Trump has been calling the politicians who make the pilgrimage to stand behind him in the New York City court where he is on trial his “surrogates” — as they push the lines of personal attacks that he has been barred from making because of a gag order.
The coordination and organization between Trump and those supporters have stoked questions about whether the remarks by the cast of Republicans amount to a violation of Trump's gag order. But legal experts say that it's difficult for prosecutors to argue a violation has occurred when Trump isn't the one doing the talking and that, even if they were successful, it might trigger a consequence they're trying to avoid: sending Trump to jail.
Trump’s gag order — for which he has already been found in criminal contempt for violating 10 times — bars him from attacking witnesses, prosecutors, jurors or court staff members, as well the families of those people and of the judge presiding over the case. State Judge Juan Merchan, in citing Trump for the violations, warned that further missteps could result in his being sent to jail, even as prosecutors have insisted they aren't asking for him to be locked up.
Unable to level his favorite attack lines, Trump has attacked the gag order itself and Merchan, as well as Manhattan District Attorney Alvin Bragg, both of whom remain fair game for his ire under the order.
Allies like Vivek Ramaswamy, a businessman who made a failed bid for the Republican presidential nomination last year, took aim at the prosecution’s star witness, Michael Cohen, when he took the stand last week, accusing him of “systematically” lying, and swiping at Merchan, “who has family members making millions of dollars as a Democratic operative, including through fundraising using this trial as a basis,” a reference to Merchan's daughter, who wasn't initially covered by the gag order but was then added.
But Trump’s allies aren’t bound by the order — only he is, said Ken White, a federal criminal defense attorney in Los Angeles.
“For it to be a violation, he has to be directing them to do these things,” White said. “Saying ‘I’m doing this because he can’t’ is not enough.”
Trump's campaign insists the effort isn't coordinated. “All guests volunteer to come to court to support their friend, President Trump, and are not invited by the campaign,” a spokesperson said.
Yet even as the soundbites from Trump’s surrogates echo many of his earlier criticisms, prosecutors have largely held their fire. Legal experts warn prosecutors risk suddenly confronting a circumstance they’ve said they wish to avoid — seeing Trump jailed. On the other hand, they risk falling flat.
White said that even if prosecutors could show Trump is responsible, by, say, somehow proving he edited his surrogates' comments before they delivered them, as one reporter alleged on MSNBC, the outcome may be self-defeating.
“The DA and the judge want to finish,” White said. “They don’t want a sideshow; they don’t want the extreme disruption of raising this again and possibly even taking the former president into custody.
“That would be a huge derail of the case,” he added.
Robert Hirschhorn, a lawyer and trial consultant, said of the rollout: “Whether Team Trump told them 'these are the points we want you to make,' they were smart enough not to have Trump tell them, so they’ve insulated him. I think if the state moved for a violation of the gag order, they would lose.
“The only option really left for the judge is to sanction Trump with some kind of incarceration, even if it’s for an hour or two. And I just don’t think the judge is going to do it,” Hirschhorn said.
Sen. JD Vance, R-Ohio, House Speaker Mike Johnson, R-La., and North Dakota Gov. Doug Burgum joined Ramaswamy in jabbing at Merchan’s daughter. When asked, his supporters have said they joined Trump in court of their own volition, not at his direction. But they aren't arriving on their own, standing in line and entering through the public entrance — several have been seen or acknowledged traveling with Trump to the courthouse and remaining part of the security "bubble" the Secret Service remains around him.
Another group of allies joined Trump in court Monday. Among them was law professor Alan Dershowitz, who could be heard during a break speaking animatedly in the courtroom about the case with his former student and research adviser Norm Eisen, a CNN contributor and legal analyst and Obama ethics adviser in the White House, who was special counsel to the House Judiciary Committee during Trump’s first impeachment. Developer and longtime Trump friend Steve Witkoff, former New York City Police Commissioner Bernard Kerik and Trump administration official Kash Patel were also seated right behind Trump in court Monday.
Dershowitz said he spotted Eisen in the gallery behind him.“I went over and said, ‘Hey, Norm, how are you? Let’s talk a little,’ and we had a very nice conversation,” Dershowitz told NBC News. “I asked him about his family, and we talked a little bit about the case.”
Those who traveled with him or sat in seats also coordinated media remarks outside the court building — where they often uttered the words Trump himself is prohibited from saying.
The rotating task of surrogates has drawn attention in the courtroom.
During a meeting between Merchan and lawyers — known as a sidebar, conducted where the jury can't hear but transcribed for the record — the prosecution asked that Trump’s surrogates and their security details not be allowed to enter or exit the courtroom during questioning. A defense attorney for Trump, Todd Blanche, said he didn’t have any control over them.
“Your honor, I have less than zero control over what is happening on anything or anyone that’s behind me when I am crossing a witness,” Blanche said. “I don’t have any control over — I mean, they are members of the public.”
“Are you expecting anybody else today?” Merchan asked.
“Your honor, I have no idea,” Blanche responded. “I’m not expecting anybody else. But I might be wrong.”
'They come from all over'
The parade of surrogates has taken on the sheen of a campaign in other ways. In a new online video advertisement calling for campaign donations, Ramaswamy appears in the courthouse alongside Reps. Byron Donalds and Cory Mills of Florida and members of Trump’s family, including son Eric and daughter-in-law Lara Trump, co-chair of the Republican National Committee. Trump can be heard in the background speaking to the media cameras.
“We are here in court with President Trump standing with him, but we need you to stand with him, too,” Donalds says.
While some of Trump’s allies arrived in his motorcade, others have entered along with the public and were spotted in the overflow room, such as Jeffery Clark, a former Justice Department official who was indicted alongside Trump in a separate criminal trial in Georgia, where they are accused of crimes related to the effort to overturn the 2020 election. Trey Gowdy, a former federal prosecutor and House member from South Carolina and a lawyer for Trump during his impeachment in 2019, entered the courtroom alongside reporters and members of the public Monday, in his role as a Fox News host.
Outside the courtroom, Trump has amplified his allies’ defenses, heaping praise on them — and even referring to others' efforts back in Washington.
“I do have a lot of surrogates, and they are speaking very beautifully,” Trump said, adding that “they come from all over.”
“And they think this is the biggest scam they’ve ever seen,” he said. “They’re all up in arms.”
White said Trump is an unusual litigant because he appears to be focused almost entirely on what's happening outside the courtroom. Inside the courtroom, he has been spotted reading and annotating articles and polls.
“His strategies tend to be about public narrative and politics and fundraising and his base, not about what would serve him best in the courtroom and of traditional legal strategy,” White said.
One day after House Judiciary Committee Chair Jim Jordan, R-Ohio, demanded records for a lead attorney in the case whom he accused of having spent years fixated on prosecuting Trump, Trump elevated the allegations himself.
Speaking in the hallway outside Merchan's courtroom, Trump said: “This all comes out of the White House and the Department of Justice. This is all them. In fact, a lead person from the DOJ is running the trial.”
Trump is all but daring the prosecution to go after him by having his surrogates out front skirting the very edge of the gag order by using a “workaround” to broadcast his message while he sticks by the letter of the rule, Hirschhorn said.
“It is crystal clear what he is doing. He is trying to turn it into a political trial,” Hirschhorn said of Trump, who is casting around for a sympathetic ear, perhaps even inside the room.
“It might be that there is at least one person on that jury that identifies as Republican, and if so, it’s a play right to that juror,” he said.
White said: “You’d have to be crazy to antagonize the judge in your criminal case. Most people wouldn’t do it. But he’s always been focused on his public image and his ego and the political narrative to the detriment of his courtroom strategy.”