Even before jury selection got underway in the "hush money" trial against Donald Trump, someone else was already working behind the scenes to quash the gag order the court had placed on the former president.
Lawyers and pundits alike began screaming foul from the moment Judge Juan Merchan entered the order, arguing that it infringes upon Trump’s free expression rights as guaranteed under the First Amendment.
Merchan has since repeatedly found Trump in violation of the order.
But New York-based lawyer Joseph Nierman observed that the First Amendment also guarantees freedom of the press, and that the gag order, entered by Merchan on March 26, gives the press a slanted, one-sided picture of the proceedings.
In his own petition Nierman alleges that, "As the first, former president or major party presidential candidate to face criminal charges in a court of law, this trial is of astonishing significance to every American and will likely play a significant role in our nation’s history."
He observes, however, that reporters covering this case that captures international interest will only have the opportunity to get opinions of the day-to-day proceedings from one source — lawyers in the Manhattan District Attorney’s office.
"The media will be able to hear about the trial from District Attorney Alvin Bragg and scores of attorneys under his purview," the petition continues.
"They will be able to interview witnesses and document several perspectives from inside the courtroom that millions of people who cannot readily access the courtroom thirstily crave."
And in addition to being a New York trial lawyer, Nierman is a member of the press.
He runs an organization called Good Lawgic, in which he comments on litigation in the news. "I cover trials and try to help you see the objectives/strategies of both sides," he says on his YouTube channel.
And as a member of the media with obvious interest in the trial of The State of New York v. Donald Trump, he has sufficient personal interest in the proceedings to meet standing requirements.
That’s not to say that the Trump team hasn’t been raising the former president’s own First Amendment challenge to the gag order. They have, and so far have been unsuccessful.
On Tuesday the Supreme Court of New York Appellate Division, First Judicial Department, upheld Merchan's gag order.
"We find that Justice Merchan properly weighed petitioner's First Amendment rights against the court's historical commitment to ensuring the fair administration of justice in criminal cases, and the right of persons related or tangentially related to the criminal proceedings from being free from threats, intimidation, harassment, and harm," the court ruled.
Nierman noted that decision, and said, "I am marching forward in my Article 78 application to #UngagTrump."
He added that "I reviewed the First Department's decision against Trump's Article 78. Trump seems to have raised none of the three critical issues I raised in my lawsuit against Judge Merchan."
Nierman suggested earlier that "Donald Trump's legal team has been overloaded putting up a strong defense. The result is that his constitutional challenge to the gag order is weeks behind mine.
"Trump should move to join my application as it is closer toward being heard."
But that may be too late.
Trump’s loss Tuesday may preclude him from joining forces with Nierman at this point.
And the merits of the Manhattan case against Trump appear to have been built on sand.
It’s apparently based on a non-disclosure agreement (NDA).
There’s nothing illegal, unusual, or even unseemly about NDAs.
As lawyer, businessman and GOP strategist Ford O’Connell observed on Newsmax TV recently, it’s "no crime, no coverup."
He added that it has Biden’s fingerprints all over it.
Add to that the trial on Trump’s classified documents case, initially set to begin next week, has been delayed indefinitely.
And the U.S. Supreme Court heard oral arguments last month on Trump’s claim of immunity from prosecution on a third charge, that he’d attempted to "overthrow" the 2020 election.
It appears from the justices' questioning that the high court will rule at least partially in Trump’s favor.
At this rate the former president’s nickname is about to become the "Teflon Donald."
The spate of lawsuits against Trump ultimately amounts to election interference, initiated by the party that always whines about "losing their democracy," while they simultaneously try to prevent half of the population from voting for the candidate of their choice.
That’s not democracy.
And Joseph Nierman is proof that good lawyering sometimes requires a little thinking outside of the box.
Michael Dorstewitz is a retired lawyer and has been a frequent contributor to Newsmax. He is also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter. Read Michael Dorstewitz's Reports — More Here.
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