A gag order does not prevent Donald Trump from testifying in court

Amy Sherman

Donald Trump

Statement: “I’m not allowed to testify” because of a gag order.

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 Thursday 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 Friday. "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 Friday statement.)

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 not to view that as a sign of guilt, Gotlob said.

When the trial resumed Friday, 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 made outside the courtroom.

Gag order limits Trump but does not silence him

The gag order aims to curb what Trump is allowed to say related to the case on social media, media interviews or campaign rallies, but it does not silence him. Trump may 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 families if those statements interfere with the case. He also must not talk about jurors. But Trump may still criticize District Attorney Alvin Bragg and Merchan and may 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.

Before the trial started, Trump told reporters he planned to testify.

PolitiFact's ruling

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 staffers and jurors. But it still allows him to talk about the case, the judge and the district attorney.

We rate this statement False.

Our sources

This article originally appeared on Austin American-Statesman: A gag order does not prevent Donald Trump from testifying in court

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