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A gag order does not prevent Donald Trump from testifying in court
If Your Time is short
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An April 1 gag order bans former President Donald Trump from talking about witnesses or jurors in the New York case about falsifying business records.
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The gag order does not prevent Trump from testifying in court. When the prosecution rests its case, Trump has the right to testify on his own behalf; Trump said he’ll do so.
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A judge never prohibits a defendant from testifying, a criminal defense lawyer told PolitiFact.
Former President Donald Trump said that a gag order in his New York trial prevents him from testifying.
"Well, I'm not allowed to testify, I'm under a gag order I guess, right?" Trump said May 2 at the end of the day at the Manhattan courthouse.
Trump added, "I’m not allowed to talk" and "I'm not allowed to testify because of an unconstitutional gag order. We're appealing the gag order and let's see what happens."
The next day, he corrected his false statement while responding to a reporter’s question before court.
"The gag order is not to testify," Trump said May 3. "The gag order stops me from talking about people and responding when they say things about me." (A Trump campaign spokesperson directed us to his May 3 statement.)
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At PolitiFact, we recognize politicians who correct their statements, but we still fact-check their initial statements if those statements drew attention. We have fact-checked many politicians or political figures who admit, usually through a spokesperson, that they misspoke, including Joe Biden in 2020.
Trump is charged with 34 counts of falsifying business records in an alleged scheme to cover up a hush money payment to adult film actor Stormy Daniels before the 2016 presidential election.
On April 1, Judge Juan Merchan issued a gag order against Trump to limit his speech and prevent him from continuing to attack witnesses outside of court. But the order does not deny Trump his constitutional right to testify in court.
"A judge never prohibits a defendant from testifying," said Evan Gotlob, a criminal defense attorney and former prosecutor. "Once the (district attorney) rests their case, he is more than welcome to testify."
Usually, criminal defendants don’t testify, and if Trump doesn’t testify, jurors will be instructed to not view that as a sign of guilt, Gotlob said.
When court resumed May 3, Merchan told Trump that the gag order "does not prohibit you from taking the stand" and that it applies only to "extrajudicial statements." These are statements said outside the courtroom.
The gag order aims to curb what Trump can say related to the case on social media, media interviews or campaign rallies, but it does not silence him. Trump can still talk about the case on the campaign trail and criticize key people with power in the prosecution.
Merchan’s order bars Trump from speaking about witnesses, lawyers, court staff members and their family if those statements interfere with the case. He also can’t talk about jurors. But Trump can still criticize District Attorney Alvin Bragg and Merchan and still call the case a "Biden trial," an assertion we have rated False. The case is being prosecuted under New York law and there is no evidence Biden is involved.
The gag order’s goal is to limit "what Trump can say to protect the integrity of the evidence and proceedings," said Neama Rahmani, a former prosecutor who co-founded West Coast Trial Lawyers.
On April 30, Merchan fined Trump $9,000 for violating the gag order.
Featured Fact-check
Before the trial started, Trump told reporters he planned to testify.
Trump said, "I’m not allowed to testify" because of a gag order.
The gag order does not prevent Trump from taking the stand in court. A judge cannot deny Trump his constitutional right to testify.
The gag order bars Trump from talking about witnesses, court staff and jurors. But it still allows him to talk about the case, the judge and district attorney.
We rate this statement False.
RELATED: Fact-check: No, Stormy Daniels didn’t ‘exonerate’ Donald Trump
RELATED: A fact-checker’s guide to Trump’s first criminal trial: business records, hush money and a gag order
PolitiFact Senior Correspondent Louis Jacobson contributed to this fact-check.
Our Sources
C-SPAN, Former President Trump Speaks After Day 10 of Hush Money Trial in New York, May 2, 2024
Donald Trump, Truth Social post, May 3, 2024
C-SPAN, House Speaker Johnson Visits Former President Trump at Mar-a-Lago, April 12, 2024
Judge Juan Merchan, Decision and order on people’s motion for contempt, April 30, 2024
Judge Juan Merchan, Order, April 1, 2024
NBC, Trump trial judge allows prosecutors to use Trump's tweets and transcript of infamous 'Access Hollywood' tape, May 3, 2024
AP, Judge in Trump’s hush money case clarifies gag order doesn’t prevent ex-president from testifying, May 3, 2024
New York Times, Trump Trial Live Updates: Testimony of Witness Who Extracted Secret Recordings Resumes, May 3, 2024
PolitiFact, Fact-checking Trump on the Stormy Daniels case: The statute of limitations and the FEC's role, March 21, 2023
PolitiFact, Fact-check: Trump misleads on jury selection, request to Judge Merchan for time off, April 17, 2024
PolitiFact, Biden misstates price of his free public college plan, Oct. 30, 2020
PolitiFact, Jeh Johnson wrong that asylum cases’ approval is ‘only about 20%’ Dec. 6, 2022
Email interview, Steven Cheung, Trump campaign spokesperson, May 3, 2024
Text exchange with Duncan Levin, attorney with Levin & Associates PLLC May 2, 2024
Email interview, Neama Rahmani, former prosecutor who later co-founded the firm West Coast Trial Lawyers, May 2, 2024
Telephone interview, Evan Gotlob, partner at Saul Ewing and former Assistant U.S. Attorney, May 3 2024
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A gag order does not prevent Donald Trump from testifying in court
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