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Professor Gregory Germain Provides Legal Insight as Trump’s Lawyer Begins Closing Arguments in Hush Money Trial

To arrange an interview with Professor Germain, please email Rob Conrad, College of Law Director of Communications and Media Relations.

In this Mirror story, Professor Gregory Germain comments that “So, even though only one juror is necessary for Trump to obtain a mistrial, and even though it’s a very flawed case, I predict that the jury will convict him.” Despite this, the professor did highlight possible flaws in the prosecution’s case.

He said: “I think the DA and the Judge are fully invested in obtaining a conviction. I think the judge will gloss over the legal issues in the jury instructions to allow a conviction by defining the legal issue around the propriety of paying hush money rather than the legality of paying hush money and how that relates to the documents charges.”

Professor Germain also spoke with Al Jazeera Network, pointing to “the two essential elements” of the indictment: “Where’s the fraud and where’s the [secondary] crime?”

Professor Jack Graves Provides Comments on SEC’s Move Toward Allowing for the Trading of Ether EFTs

Professor Jack Graves spoke with Marketwatch for the article “SEC Moves Closer to Blessing Ether ETFs, Cheering Crypto Fans” regarding opening the door for trading of securities based on ether, a form of cryptocurrency. Many experts expect this to soon open the door to ether exchange-traded funds (EFTs.) This would be done through traditional investment methods rather than a crypto wallet.

Ether works a little differently from bitcoin, coin transactions are verified by a subset of the people who hold them. That may have made the SEC uncomfortable, said Graves.  “I think there have been concerns about potential control or manipulation,” he said.

Listen to Professor Graves’ interview here.

“Make Tickets More Affordable” Professor Shubha Ghosh on the DOJ’s Antitrust Lawsuit Against Ticketmaster and Live Nation

Crandall Melvin Professor of Law Shubha Ghosh spoke with USA Today regarding the Department of Justice’s antitrust lawsuit against Ticketmaster and Live Nation.

Ghosh notes that if the company is broken up, “This could give consumers more options on where to buy tickets and which companies’ venues to visit and, in turn, make tickets more affordable.”

Professor Katherine Macfarlane’s Article on Section 1983 Cited in Qualified Immunity Ruling

Professor Katherine Macfarlane’s article Accelerated Civil Rights Settlements in the Shadow of Section 1983, 2018 Utah L. Rev. 639 (2018) was cited by District Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi in a ruling in Green v. Thomas, denying a motion to dismiss malicious prosecution and false arrest claims on the grounds of qualified immunity. In his decision, Judge Reeves cites Professor Macfarlane’s article on Section 1983, a law that was passed originally as part of the Ku Klux Klan Act of 1871, and its historic role in civil rights litigation, writing:

The Ku Klux Klan Act “established a new legal order that contemplated direct federal intervention in what had been considered to be state affairs, a system in which federal courts were to enforce newly created federal constitutional rights against state officials through civil remedies and criminal sanctions.” Katherine A. Macfarlane, Accelerated Civil Rights Settlements in the Shadow of Section 1983, 2018 Utah L. Rev. 639, 660 (2018) (quotation marks and citation omitted). 

In conclusion, Judge Reeves writes:

“Desmond Green has suffered two injustices. The judiciary should not impose a third. If qualified immunity would do that, closing the courthouse doors to his claims, then the doctrine should come to its overdue end. The motion to dismiss is denied. This case is stayed so that Detective Thomas can exercise her right to an immediate interlocutory appeal. If she declines to timely appeal, the case will proceed into discovery as to this defendant. Detective Thomas can exercise her right to an immediate interlocutory appeal. If she declines to timely appeal, the case will proceed into discovery as to this defendant.”

Judge Reeves also cited Professor Macfarlane in his 2020 decision in Jamison v. McClendon.

Professor Gregory Germain writes: The Most Important Part of Trump’s Hush Money Case begins Next Week

In this legal review, Professor Gregory Germain examines the next step in the Donald Trump hush money trial: jury instructions that are expected the week of May 27.

Media wishing to interview Professor Germain on this or related topics should email Rob Conrad, director of communications and media relations or Syracuse University’s media team by email.

The public and the press have been riveted by the parade of celebrity witnesses testifying in the first criminal trial of a former United States President.  While the public and the press speculate about whether Donald Trump really had a one night stand with Stormy Daniels, or whether the jury liked or believes Michael Cohen’s testimony, those factual questions pale in comparison to the fundamental legal issues that Manhattan District Attorney Alvin Bragg has to prove to obtain a proper conviction. 

At this point in the trial, the jury likely has no idea what this case is really about.  What comes next is the most important part of the trial, by far, where the jury is told what they have to find in order to convict Trump of the charged crime.

The first and most important step in presenting the law to the jury will be Judge Merchan’s jury instructions.  The jury instructions tell the jury what is the law that they must apply.  Proper jury instructions will identify the separate legal elements of the crime(s) that must be proven for a conviction.  Improper jury instructions will gloss over the legal issues, and make it more likely that a jury, who may not like the defendant, will convict, but also more likely that any conviction will be overturned on appeal. 

The charges against Trump are that he violated New York Penal Law § 175.10 by falsifying business records.  The business records state that Trump paid attorney fees to Michael Cohen, rather than stating that some portions of the payments were really to reimburse him for the hush money payments he made to Stormy Daniels.  Although Trump has tried to impeach Michael Cohen’s credibility, there is really no logical alternative to his testimony that Trump was aware of Cohen’s hush money payments and agreed to reimburse him.

Penal Law Section 175.10 requires a showing (1) that Trump, with the intent to defraud, [made or caused to be made] false entr[ies] in an enterprise’s business records,” and (2) that “his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”  See NYPL §§ 175.05, 175.10.

Thus, the two elements require the District Attorney to prove that Trump intended to defraud, and intended to cover up a separate crime when he made or caused the false business entries. 

The judge held preliminary discussions about the jury instructions on Tuesday.  Trump argued that the jury instructions should specifically require the jury to find that the false business entries were made to “defraud” someone out of money or property.  There has been no evidence admitted at trial to suggest that business records were falsified to defraud anyone out of money or property, which is the normal meaning of “fraud.”  But there are some appellate division cases interpreting “defraud” to mean “mislead.” The prosecutor argued that the instructions should gloss over the requirement by suggesting that the business records were falsified to mislead the public. 

But there is a problem with the DA’s argument.  The false business records were made in 2017 after the 2016 election was over.  They were private business records that were not disclosed to the public.  How could they have been made with an “intent to defraud” the public when they were made after the election and without disclosure to the public? 

There was no evidence in the trial to show why the records were falsified.  I suspect that a decision was made to make the hush money payments through Cohen so that Trump’s fingerprints would not obviously be on the payments.  That might preserve some measure of deniability, although not much.  Payments made by one’s lawyer are usually on one’s behalf.

But Trump did not deny making the payments.  So the public was not misled or “defrauded: in any way by the records. 

Early in the case, the District Attorney suggested that Trump might have been disguising the payments to commit tax fraud.  But the DA introduced no evidence to support that claim.  Trump asked Judge Merchan to prevent the District Attorney from arguing the tax fraud point.  The District Attorney argued that falsifying the payment as income to Cohen rather than a reimbursement was a “tax law violation,” but Trump pointed out that there is no evidence that anyone received a tax benefit from the characterization.  The court did not rule on the issue. 

If the judge does not clarify the legal issues, the jury will surely be confused about the requirements, and the basis for the jury’s verdict may be unclear.

Similarly, the parties argued about instructions concerning David Pecker’s testimony, which suggested that there was a conspiracy to catch and kill stories.  That indeed might have been a crime, but it has nothing to do with the business entries that are the basis for the charges.  If anything, that is a separate matter that is very prejudicial and not probative of the business records charges.  The judge’s failure to instruct the jury not to consider character evidence about other crimes in determining whether Trump committed the charged business records violation may make verdict difficult to sustain on appeal.

The DA’s second requirement is to show that the business records were falsified with the intent to conceal a separate crime, separate from the “defraud” requirement.  The DA has indicated that the separate crime is New York Election Law § 17.152, which makes it a misdemeanor to “conspire to promote or prevent the election of any person to public office by unlawful means.”  This is circular since the separate crime itself requires conduct that uses “unlawful means.” 

There is, I think, a theory for establishing a conspiracy to commit a separate crime, but it has nothing to do with the separate conspiracy involving David Pecker.  Michael Cohen’s payment to Stormy Daniels was a loan made to Trump, and could be characterized as being made to influence the election.  Campaign loans, like campaign contributions, are subject to campaign finance limits, so Michael Cohen’s loan might be an illegal campaign contribution.  Trump conspired with Cohen to make the illegal campaign finance contribution loan.  Therefore, Cohen violated federal campaign finance law, and Trump violated New York Election Law § 17.152 by conspiring with Cohen to do so. 

The problem with this theory, however, is the intent requirement.  Covering up the obscure New York Election Law and the federal campaign finance violation must have been the reason for making the payment through Cohen, and there was no evidence that either Cohen or Trump were aware of these rather obscure state or federal election law provisions in connection with the loan.  Intending to hide a porn star payment seems very different from intending to hide an election law violation.  It does not make sense that they would structure the payment through Cohen, which created an election law issue, if they were aware that it created an election law issue.  Having Trump’s lawyer make the payment surely provided very little cover to Trump.  Unless they were very foolish, they were likely unaware that they were doing anything illegal by running the hush money payments through Cohen.

So we do not know what Judge Merchan’s jury instructions will say, but he seemed to be leaning towards ambiguity rather than clarity, as he has throughout the case.  Ambiguity might allow the jury to reach whatever determination they want based on their feelings for the parties and their conduct, rather than on the basis of the law.  The testimony at trial shows a lot of sleazy and unethical dealings by Trump, Pecker, Stormy Daniels and Michael Cohen.  By failing to distinguish the sleazy and unethical, from the illegal, the judge may obtain a conviction but it will be much less likely to be upheld on appeal.  And ambiguity will continue to play into Trump’s political narrative of an unfair prosecution.

Judge Merchan’s independence is on the line in these jury instructions, and he should rightly be judged in the court of public opinion by the care and clarity used in his jury instructions in a case as complex and confusing as this one.

After the jury instructions are completed, the parties will make their closing arguments.  This will be the District Attorney’s opportunity to make the case, based on the evidence, that Trump falsified business records to defraud and to commit the separate crime of conspiring to unlawfully influence the election. 

Then Trump’s attorneys will have an opportunity to point out the statutory requirements, and to argue that the evidence does not meet the legal requirements of the charged crime. 

It will then be up to the jury to decide whether the crime has been proven. 

2L Encourages Others to Work Hard But Take Time to Enjoy the Vast Opportunities of the Syracuse University Campus

Noah stands in front of a blue and orange stack of Law Review publications on a shelf

Noah Centore ’25 has wanted to be a lawyer since high school. Today, he is well on his way to accomplishing that goal at the Syracuse University College of Law, where he has gained some valuable experience to help decide on his career path.

He credits his uncle, Chris Centore, a real estate attorney at Barclay Damon, LLP, in Syracuse, for being a role model to him as he considered studying law, as well as his late grandfather, Henry Centore, who “was always interested in what I was doing and always supported me.” One of the reasons the Syracuse native decided to attend Syracuse Law was because he wanted the support of his family nearby as he navigated law school.

Centore graduated from Nazareth College with a bachelor’s degree in history and a minor in business leadership. Before starting law school, he decided to take a gap semester. He thought it would be filled with odd jobs and some time to himself, but instead he ended up as a long-term substitute teacher in the Rochester (NY) City School District—a role he found both interesting and challenging.

Noah looks to the side as he stands in front of large windows in a darkened courtroom

Now, as he completes his second year of law school, he is taking advantage of the many opportunities available to him. Currently, he is the vice president of the Class of 2025 and next fall will take on the position of executive president. He is also the social chair of the Student Bar Association (SBA), an editorial member of the Syracuse Law Review, and a member of the Travis H.D. Lewin Advocacy Honor Society, Appellate Division.

“There’s a whole big University campus out there at Syracuse with a lot to offer, whether it’s time with friends, activities around the campus or going to a football game at the Dome. To be successful, you need to put the books down once in a while and enjoy all that Syracuse has to offer.”

Noah Centore ’25

He has also participated in the law school’s Youth Law Day, which brings 100 high schoolers from Central New York to Dineen Hall to give them a first-hand look at the legal profession. And as a 1L, Centore received two CALI (Center for Computer-Assisted Legal Instruction): Excellence for the Future awards—one for professional responsibility and another for legal communications and research. CALI awards are given to students with the highest grade in the class.

Noah reads an open Law Review

Centore is not yet sure what area of law he’d like to practice, but he’s built up some great experience over the past two years. Last summer, he interned as a law clerk with the U.S. District Court, Northern District of New York, and, this academic year, he is a research assistant for Professor David Driesen, supporting the faculty member’s work in constitutional law and assisting in filing an amicus brief with the U.S. Supreme Court. As his 2L year comes to a close, Centore is eagerly waiting to start a position as a summer associate at the firm of Hancock Estabrook, LLP, where he will rotate through the various departments to get a better understanding of his career preferences.

“I am currently open to a variety of practice areas,” he explains. “I know I’d like to work for a large law firm, but I think I’d like to clerk for a judge first to gain some additional experience. I love my hometown of Syracuse, and I think I’ll come back and settle down here one day, but I would love to work in a larger city for a couple of years to see what possibilities are out there.”

Noah smiles at the camera in a darkened courtroom

Centore encourages others to tackle law school and not buy in to the stereotype that it’s too difficult. “Of course, you have to work hard. There’s no substitute for that, but sometimes people make law school out to be impossible,” he says. “You need time management and a good work ethic, but it’s worthwhile, so don’t let anyone deter you if you’re passionate about the law.”

He also encourages those in law school to take time to enjoy themselves. “Despite its reputation, law school can be a lot of fun,” Centore says. “There’s a whole big University campus out there at Syracuse with a lot to offer, whether it’s time with friends, activities around the campus or going to a football game at the Dome. To be successful, you need to put the books down once in a while and enjoy all that Syracuse has to offer.”

Noah taking a video with his phone during a Syracuse Bar Association Third Thursday Event on a beautiful sunny day

Professor Gregory Germain writes: Gagging Trump: Is Judge Merchan’s Gag Order and Award of Sanctions Constitutional?

In this legal review, Professor Gregory Germain examines the balance between a defendant’s Constitutional First Amendment rights and the state’s right to protect the judicial process as it relates to Judge Merchan’s gag order on Donald Trump.

Media wishing to interview Professor Germain on this or related topics should email Rob Conrad, director of communications and media relations.

I have previously written about the complex, or indeed convoluted, legal requirements that District Attorney Alvin Bragg must prove in order to properly convict Donald Trump of violating New York Penal Law § 175.10, which makes it a felony to falsify business records for the purpose of “defraud[ing]” someone, and also to cover up a separate crime.  Germain, The Manhattan District Attorney’s Convoluted Legal Case Against Donald Trump Gets More Convoluted.

But there is separate mini-case going on within that criminal case that raises fundamental constitutional questions – what is the power of the court to gag a defendant from making out-of-court statements that criticize the court process or the other participants? 

Gag orders bring into conflict two fundamental rights:  the right of free speech protected by the First Amendment of the Constitution, and the right of the state to protect the judicial process.  The underlying question is whether Judge Merchan’s gag order properly balances these conflicting interests to withstand constitutional scrutiny. 

Judge Merchan’s Gag Order

Judge Merchan’s order prohibits Trump from engaging in three kinds of speech:  (1) “public statements about witnesses “concerning their potential participation” in the case, (2) public statements about court personnel, lawyers and other participants, and their family members, if “made with intent to materially interfere with, counsel’s or staff’s work in this criminal case, or with knowledge that such interference is likely to result,” and (3) any statements about jurors. 

The provisions regarding witnesses and court personnel are quite vague – what does it mean to criticize witnesses “concerning their participation?”  Trump’s disparaging public statements concerned the witnesses’ character, rather than their participation in the case.  Similarly, when are statements about court personnel designed to “interfere” with their work? 

With respect to jurors, Judge Merchan’s original gag order only protected “juror anonymity.”  His expanded order prohibited Trump from saying anything at all about jurors.  Judge Merchan stated that the broad order was “narrowly tailored” “to prevent extrajudicial speech targeting jurors and exposing them to an atmosphere of intimidation.”  But Judge Merchan has held Trump in contempt for making general comments about the political independence of the Manhattan jury pool, rather than for attacking individual jurors. 

Judge Merchan justified the other speech restrictions to prevent Trump from continuing to make statements that:

“were threatening, inflammatory, denigrating, and the targets of his statements ranged from local and federal officials, court and court staff, prosecutors and staff assigned to the cases, and private individuals including grand jurors performing their civic duty. The consequences of those statements included not only fear on the part of the individual targeted, but also the assignment of increased security resources to investigate threats and protect the individuals and family members thereof.  Such inflammatory extrajudicial statements undoubtedly risk impeding the orderly administration of this Court.” 

So Judge Merchan’s order is based on two different concerns:  (1) a concern for the safety of the participants, and (2) a desire to prevent criticism and denigration of the court process.  As discussed below, the former concern is directed to the potential responses of Trump’s supporters to his words rather than to Trump’s words themselves, and the latter concern directly impinges on Trump’s constitutional right of free speech.

Findings of Contempt and the Threat of Jail

Judge Merchan has held Trump in contempt ten times, and has fined him the maximum of $10,000, for criticizing the jury pool in Manhattan and the jury selection process, for making disparaging comments about witnesses Stormy Daniels and Michael Cohen, who are both public figures actively engaged in making public comments about him, and for criticizing the judge and prosecutors as politically biased.  In his 10th contempt order, Judge Merchan told Trump “”The defendant is hereby warned that the Court will not tolerate continued willful violations of its lawful orders and that if necessary and appropriate under the circumstances, it will impose an incarceratory punishment.” 

Are Gag Orders Constitutional?

Constitutional protections are subject to various degrees of scrutiny depending on the issues involved.  For example, governmental regulation of economic matters is reviewed under a very deferential standard –the government need only show a “legitimate governmental interest” to regulate economic matters. 

But challenges to fundamental constitutional rights like free speech are subject to the highest standard of strict scrutiny:  the government must show that the speech regulation is narrowly tailored to meet a compelling governmental interest.  This comes from the famous “footnote 4” in United States v. Carolene Products Company, 304 U.S. 144 (1938), and has been emphasized in numerous decisions of the Court after that. 

Is Judge Merchan’s gag order narrowly tailored to meet a compelling governmental interest? Gag orders are a prior restraint on free speech, since they prohibit future conduct rather than punishing past conduct.  Prior restraints on free speech are subject to the strictest scrutiny.  And prior restraints on the free speech of political candidates would presumably be subject to extra-strict strictest scrutiny. 

Judge Merchan cited three Supreme Court cases to justify the Trump gag order, without discussing the holdings. 

First, in Landmark Communications, Inc. v. Virginia, 435 US. 829, 842-843 (1978), the Court overturned the criminal conviction of a newspaper publisher who had identified the judge who was being investigated in a judicial conduct proceeding, which proceeding, under Virginia law, was supposed to be secret and confidential.  The state attempted to justify the secret and confidential nature of judicial conduct proceedings by identifying various legitimate state interests in maintaining confidentiality:  confidentiality encourages the filing of complaints and investigations of possible wrongdoing, protects the judge being investigated against the damage from publicity of unwarranted complaints, and it maintains confidence in the judiciary.  The court overturned the publisher’s conviction finding the justifications insufficient to abridge the publisher’s free speech rights.  “The publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth’s interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom.”  Id. at 838.

But the Court in Landmark went on to point out that the state’s justifications should not even be given weight in the constitutional balance. 

“Moreover, neither the Commonwealth’s interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here, even on the assumption that criminal sanctions do in fact enhance the guarantee of confidentiality. Admittedly, the Commonwealth has an interest in protecting the good repute of its judges, like that of all other public officials. Our prior cases have firmly established, however, that injury to official reputation is an insufficient reason “for repressing speech that would otherwise be free.” The remaining interest sought to be protected, the institutional reputation of the courts, is entitled to no greater weight in the constitutional scales.

Id. at 841-42 (citations omitted).  Thus, Landmark says that Judge Merchan’s concern for protecting the integrity of the judicial process or the reputations of the participants is not given weight against Trump’s constitutional right to speak. 

The Landmark court went even further by suggesting that the standard for assessing threats borders on the “clear and present danger” test:

In a series of cases raising the question of whether the contempt power could be used to punish out-of-court comments concerning pending cases or grand jury investigations, this Court has consistently rejected the argument that such commentary constituted a clear and present danger to the administration of justice. What emerges from these cases is the “working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished,” and that a “solidity of evidence,” is necessary to make the requisite showing of imminence. “The danger must not be remote or even probable; it must immediately imperil.”

Id. at 844-45 (citations omitted). 

One has to wonder whether Judge Merchan read the Supreme Court’s decision in Landmark before citing it as a basis for his gag order, as his justifications for the gag order would not even be given weight in balancing Trump’s free speech rights.  And Landmark does not deal at all with the even stronger concerns about prior restraints as opposed to post-speech punishments. 

The second case cited by Judge Merchan in support of the gag order is Sheppard v. Maxwell, 384 US 333 (1966), a famous case in which Sam Sheppard, a prominent neurosurgeon, was convicted of bludgeoning his wife to death.  The issue in Sheppard was whether the criminal defendant received a fair trial when the trial court made no effort to protect him from negative publicity reaching the jury.  In Sheppard, there were many things the court could have done to assure a fair trial without impeding freedom of speech and the press:  better jury sequestration, change of venue, separating the participants from the press, controlling the dissemination of information.  The Court said that the judge, who was up for re-election, created a “carnival atmosphere” in the courtroom that denied Sheppard his constitutional right to a fair trial.  The focus of Sheppard was to protect the defendant’s constitutional fair trial right; there is nothing in Sheppard that supports a gag order preventing the defendant from criticizing the court or other participants. 

Finally, Judge Merchan cited Nebraska Press Assn v. Stuart, 427 U.S. 539 (1976), which involved a gag order preventing the press from publishing certain incriminating information about the defendant in order to protect the defendant’s right to a fair trial.  The case thus involved a direct conflict between two constitutional rights:  the defendant’s constitutional right to a fair trial, and the free speech rights of the press under the first amendment.  Once again, the Court held that the gag order was invalid because the trial court failed to consider other means to assure that the defendant received a fair trial, noting the extremely high constitutional standard for prior restraints on speech. 

So none of the cases cited by Judge Merchan support his gag order.  Sheppard and Stuart involved the defendant’s right to a fair trial, not restraints on a defendant’s speech, and neither case upheld or suggested the use of a gag order. Landmark specifically rejected the notion that a general concern with the public’s respect for the judicial process even counts in the balance against a constitutional right to free speech. The string citation of these important Supreme Court cases does not show the careful analysis of the law that one would expect when issuing an order preventing a presidential candidate during an election from exercising his First Amendment speech rights.

The DC Circuit’s Gag Order Against Trump

Judge Merchan’s gag order was modeled after the decision of the federal Court of Appeals in United States v. Trump, 88 F.4th 990 (D.C. Cir. 2023), although the gag order in that case applied to all of the trial participants, not just Trump.  The D.C. Circuit upheld but modified the trial court’s gag order in the federal election interference case brought by prosecutor Jack Smith.  That case is currently on appeal to the United States Supreme Court concerning the scope of presidential immunity.  

Unlike Judge Merchan’s gag order, the D.C. Circuit’s 39 page opinion contains significant legal analysis and support.  The opinion begins by recognizing Trump’s strong constitutional free speech rights, noting that “the First Amendment `has its fullest and most urgent application’ to speech uttered during a campaign for political office” and that “the First Amendment generally shields ‘insulting, and even outrageous, speech.’” 

The DC Circuit also recognized that “Certain ‘historic and traditional categories’ of speech receive no First Amendment protection, such as defamation, incitement, ‘[t]rue threats of violence,’ and obscenity.” 

But then the DC Circuit deviates from Supreme Court doctrine to state the broad principle upon which its opinion rests – that the court “system” (separate from the defendant’s constitutional right to a fair trial) has a compelling interest in protecting its “integrity” that should be weighed against the defendant’s constitutional right of free speech.  And that the courts have broader latitude in restraining the participants in the case than in restraining non-participants. 

The DC Circuit put a great deal of emphasis on the Supreme Court’s decision Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991), where the Court overturned the criminal conviction of a lawyer for the defendant, who had made out-of-court statements about the police being corrupt, and was later convicted for violating a Nevada state bar statute that prohibited an attorney from making “an extrajudicial statement . . . that . . . will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” 

After reading the DC Circuit’s opinion, you would think that the Court affirmed Gentile’s conviction.  In fact, the Court overturned Gentile’s conviction, holding that Gentile’s statement as a matter of law did not have a substantial likelihood of prejudicing the proceeding.  Nevertheless, the DC Circuit took comfort in the Court’s statement that “the First Amendment allows a court to prohibit the speech of a trial participant when the speech poses a ‘substantial likelihood of material prejudice’ to an adjudicative proceeding.” 

The DC Circuit took that thin reed of dicta to conclude that the courts can limit participant “outside speech and influences [so that they] do not derail or corrupt the criminal trial process. On this record, the constitutional path for the presiding judge to protect both free speech and the fair and orderly administration of justice was not to limit what outsiders can say about the trial or trial participants, but to appropriately delimit what trial participants, including the accused, can say publicly to other participants, witnesses, or outsiders.” 

The Court then suggested that Trump’s public comments about witnesses like Mark Meadows may have been designed to influence their testimony, and since the criminal law would prevent Trump from directly influencing a witness’s testimony, a gag order could prevent him from indirectly through the media attempting to influence a witness’s testimony.  Judge Merchan expressed no similar concern about Trump indirectly attempting to influence witness testimony by his public statements.

Similarly, the DC Circuit stated that “threats” against court personnel could “generate alarm and dread” or “trigger extraordinary safety precautions” that would “hinder the trial process and slow the administration of justice.” That of course might be true of true “threats,” but is it also true of public criticism?  This is a very vague concern that ignores the law of incitement, discussed below. 

To balance the defendant’s free speech rights against protecting the judicial process, the DC Circuit added language preventing Trump from making statements about witnesses only if the statements “concern[ed] their participation” in the trial, and added language restricting statements about court personnel if he could reasonably foresee that it would interfere with their job. 

Judge Merchan copied the DC Circuit’s language, limiting the gag order to statements about witnesses “concerning their participation,” and added language about “intending to interfere” for court personnel and opposing lawyers. 

But the application of the DC Circuit’s language is opaque.  Does the following tweet by Trump concern Michael Cohen’s “participation in the trial”:  “If anyone is looking for a good lawyer, I would strongly suggest that you don’t retain the services of Michael Cohen!”  Or does calling Michael Cohen a “liar” before he testified “concern his participation,” or does it concern his character?  Does saying Judge Merchan is “politically compromised” prevent him from doing his job?  I do not think the standard articulated by the DC Circuit is not clear enough to be workable, and the law requires injunctions to be clear so that the enjoined parties understand what they can and cannot do. 

The First Department Appellate Division Order

Trump brought a proceeding under Article 78 of the New York Civil Law and Practice Rules (CPLR) seeking to overturn Judge Merchan’s gag order.  The Appellate Division for the First Department held that Article 78 relief is discretionary, and, noting that a similar gag order was approved by the DC Circuit, denied his request.  The Appellate Division said that the participants have a right to be free from “threats, intimidation, harassment and harm.” The Court did not seem concerned about abridging Trump’s constitutional right to speak. 

Trump’s Prospects for Overturning the Gag Orders.

So far Trump has lost every attempt to challenge the gag orders.  While the courts have paid lip service to his free speech rights, the courts have put their concerns for the judicial process ahead of his constitutional speech rights. 

There is no doubt that courts have a fundamental responsibility to protect the safety of court personnel, witnesses, jurors, and other participants.  And there are legitimate concerns in this case for the safety of the participants.  Trump’s supporters have doxed and threatened his opponents.  The DC Circuit said:

The district court made a factual finding that, “when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.” Mr. Trump has not shown that factual finding to be clearly erroneous, and we hold that the record amply supports it.

When Trump publicly attacks his opponents with words, his supporters have responded with threats and harassment.  And there is a legitimate concern that his supporters might resort to violence, as we saw on January 6, 2021, when, following a Trump call to stop Congress from certifying Biden’s election, Trump’s supporters invaded the US Capitol. 

But can Trump’s constitutional right to free speech be abridged because of the way that his supporters might react to his words?  The Supreme Court has addressed this question in the incitement cases. 

The starting point is Brandenberg v. Ohio, 395 US 444 (1969), where a Ku Klux Klan member invited the media to his farm to film a Klan meeting where they burned a cross and made racist and violent statements against blacks and jews.  Brandenberg was convicted under an Ohio criminal statute for advocating violence and criminal conduct. 

But the Supreme Court overturned his conviction, holding that Brandenberg’s belief in and advocacy of violence was protected speech under the First Amendment.  The Brandenberg rule prevents the state from punishing speech even advocating violence unless that speech incites or produces “imminent lawless action and is likely to incite or produce such action.”  The speaker must not only advocate violence, but must encourage that it be committed promptly, and provide a road map for its commission. 

The same rule was applied in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), where the NAACP organized a boycott of white businesses as a civil rights protest.  Charles Evers, the Field Secretary of the NAACP, made several speeches suggesting that black people who violated the boycott would “have their necks broken by their own people,” and “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”  The owners of the boycotted stores sued the NAACP for lost profits from the boycott due to Evers’ threats of violence.  The Court, citing Brandenberg, held that Evans’ speech was protected by the First Amendment because it did not incite imminent lawless action.

Trump’s statements about the trial have not directly and explicitly called for violence, and certainly would not meet the incitement test of imminent lawless action.  It is difficult to see how Trump’s speech could be curtailed because of the concern that his supporters might respond with harassment or even violence when he did not explicitly incite an imminent lawless response.  Risks of violence exist in every legal case, and are especially concerning in in high profile cases involving celebrities.  The courts surely could prohibit participants from inciting imminent lawless action or violence, but they cannot prohibit protected speech out of concern for the potential response of third parties.  Instead, the court must rely on law enforcement to protect the safety of the participants.  The concern for the response of supporters is not a legitimate basis for infringing on Trump’s constitutionally protected speech rights.

Furthermore, the court has repeatedly recognized in the cited cases that the integrity of the judicial process is fair game for public criticism.  Judge Merchan cannot use his authority to prevent Trump from criticizing his decisions or his independence.

The Future of the Gag Order

In my opinion, the gag orders are not narrowly tailored to protect a compelling governmental interest, because there are many things the court could do to protect jurors and witnesses from being influenced by Trump’s public statements if that’s the real concern.  Criticism of the judge and the judicial process is plainly protected speech.  The gag orders also contain both vague and overbroad language under which he could be, and has been, punished even though his statements were protected speech.

Trump’s problem is that the lower courts are not likely to take his constitutional claims seriously, and it is a long road to get his constitutional claims from the state courts to the United States Supreme Court.  I strongly doubt that the Supreme Court would consider intervening in a state court proceeding involving merely monetary sanctions in the thousands of dollars.  Those sanctions can be challenged in due course on appeal, and would likely not be reviewed by the Supreme Court.

However, the calculus changes materially if Judge Merchan decides to put Trump in jail for violating the gag order.  Jailing a presidential candidate during an election for engaging in speech would cause a constitutional crisis.  If the state appellate courts did not promptly intervene, I believe the Supreme Court would intervene by certiorari to promptly hear his constitutional challenge to the gag order.

Trump and Judge Merchan have been engaged in a game of chicken over the possibility of a prison sentence.  The repeated $1,000 sanctions awards have not stopped Trump from flouting the gag order by criticizing the court, the process and the witnesses.  In response to Judge Merchan’s jail threat, a defiant Trump has said “I’d be proud to go to jail for the Constitution.”  They are on a collision course for control, and, if Judge Merchan takes the bait, their tiff may ultimately lead to a clear Supreme Court ruling on the future scope of gag orders, which is probably long overdue.

I do not believe Judge Merchan’s gag order would withstand constitutional scrutiny before the Supreme Court, which has been very protective of First Amendment speech rights. The Court might allow a very clear and very limited gag order to prevent speech that would not be protected by the First Amendment, such as genuine incitement, but Judge Merchan’s broad, one-sided order preventing Trump from criticizing the court and witnesses, while not prohibiting the witnesses from criticizing him, is not consistent with the Court’s free speech precedent.

Syracuse University College of Law Introduces Two Groundbreaking Intercollegiate Trial Advocacy Competitions: The National Military Trial Competition and the Syracuse Deposition Competition

Syracuse University College of Law will host two first-of-its-kind intercollegiate trial advocacy competitions in the 2024-2025 academic year. The new competitions are the National Military Trial Competition and the Syracuse Deposition Competition, bringing the total of hosted Syracuse Law competitions to five.

The National Military Trial Competition (NMTC) introduces law students with an interest in military justice and the Judge Advocate General’s Corps (JAG) to the trial process in military courts. The competition will take place in person in Syracuse, NY on March 21st -23rd, 2025.

NMTC will feature between eight to 12 teams competing against each other in a case involving a military court-martial. The case will be tried using the Uniform Code of Military Justice (UCMJ) and the Rules for Courts-Martial (RCM) applicable to military courts.

Because trying cases in a military court may be unfamiliar to students and coaches, Syracuse Law will facilitate a virtual non-mandatory introductory training for trying cases in military courts, immediately before the release of the fact pattern. While teams can choose their coach, Syracuse Law will connect any team who are interested in working with current or former JAG officers with JAG officers who are willing to coach and assist. 

The application is now open and can be found on the NMTC webpage.

The Syracuse Deposition Competition (SDC) fills a training void in legal academia by providing students with a unique platform to expand their arsenal of practical skills. Participants will gain invaluable insight through simulated real-world experience to enhance critical skills for conducting and defending depositions. The competition will take place virtually on November 1st – 3rd, 2024.

Today, depositions have become the standard and trials the exception. A forum to develop deposition skills is more necessary now than ever. Between the 1930s and 1960s, the percentage of federal civil cases that went to trial fell from 20% to 12%. By 1992, this number dropped to 3.5%.

The competition will feature a minimum of eight teams who will compete by taking and defending depositions. Because of the unique nature of a new deposition competition, Syracuse Law will host a non-mandatory virtual training session to discuss the basics of deposition practice immediately before the release of the fact pattern.

There will be no registration fee. The application is now open and can be found on the SDC webpage.

“The new competitions close a gap in legal advocacy education as these are the first to address the unique challenges of military law and trials and the burgeoning reliance on depositions rather than trials to settle disputes,” says Professor Todd Berger, Director of Advocacy Programs at Syracuse Law.

Syracuse Law also hosts the National Trial League, the Syracuse National Trial Competition, and the Transatlantic Negotiations Competition (co-hosted with Queen’s University Belfast.) Information on all Syracuse Law-hosted trial advocacy competitions can be found here.

“Syracuse University College of Law has a track record of creating innovative advocacy curriculum and programs that further the practical educational needs of today’s law students,” says Dean Craig Boise. “I am proud that our institution is adding these unique competitions that will help train new lawyers with the skills needed in the legal profession.”

In addition to the five hosted intercollegiate competitions, the Syracuse Law offers the only joint J.D./LL.M. in Advocacy and Litigation degree that students can complete in three years and at no further cost than the J.D. Its Travis H.D. Lewin Advocacy Honor Society conducts five intracollegiate competitions and participates in numerous intercollegiate competitions across the country.

Professor Kevin Noble Maillard Writes on the Intersection of Indigenous Rice Crops and Climate Change

Professor Kevin Noble Maillard has contributed “How Wild Rice Forecasts Climate Change” in The New York Times. Maillard examines how manoomin, a crop vital to the Indigenous peoples of the Upper Midwest, has been threatened in recent years due to climate change and how it is being restored.

Maillard notes, Climate change and human impact have significantly depleted the natural abundance of manoomin, the “good berry” as wild rice is known in Anishinaabemowin, an Indigenous language also known as Ojibwe, and protecting it is synonymous with preserving cultural identity.

He continues, Threats to wild manoomin have spurred restoration movements in Indigenous nations, and legal and educational institutions have stepped in to help. The White Earth Nation has sought to enforce the “rights of manoomin” under several historic treaties, and a number of Indigenous bands have partnered with universities for research and data collection. As Karen Diver, the senior adviser to the president of the University of Minnesota for Native American affairs, explained, “researchers are impacted and informed not just by science, but by understanding the cultural values of the tribe.”

The full article may be behind a paywall.

Syracuse Law Alum Dreamed of NYC But Returned to California to be a Pioneer in Entertainment Law

Leslie Park stands in front of the Hallmark Media sign in her L.A. office.

When Leslie Park L’95 was a young girl growing up in a Korean-American immigrant family in Los Angeles, she remembers watching a movie where a female lawyer with a briefcase was walking down the courthouse steps in New York City. It was then that she decided “that’s going to be me one day.”

That moment planted a seed in her that continued to grow. After earning a bachelor’s degree from the University of California Irvine, she decided to pursue law school. Park only applied to law schools in the Midwest or on the East Coast, as she kept dreaming of walking down those courthouse steps. One was the Syracuse University College of Law, which was a lot closer to New York City than California.

“I enjoy being a full-fledged entertainment lawyer. I know how a movie is made, the legal and real-life issues, intellectual property matters, how to handle talent and labor disputes, as well as how to comply with ever-changing privacy laws.”

Leslie Park L’95

Park credits her experience at Syracuse Law for instilling a sense of independence in her that has continued throughout her legal career. It was her first time away from home, and it took some adjustment. Most of the students were from the East Coast with only a few from California. “And, it was so cold!” she says. “The heaviest coat I brought with me was a windbreaker. But, I made it through the obstacles, and I’m grateful that I succeeded in becoming a lawyer.”

After graduating, she did make it to New York City after all, working as an attorney for Sidley Austin LLP and Moses & Singer LLP, as well as corporate counsel for Atari.

But, in 2003, she and her husband decided it was time to move back to Los Angeles to be near family. Park took a job with Hallmark Media (operator of Hallmark Channels and owned by Hallmark Cards, Inc.), as an in-house counsel in charge of corporate and securities filings. Even after Hallmark Cards took the company private in 2016, Park stayed on and assumed an expanded role since she had learned so much about the company and entertainment law in the 13 years. Today, she is the senior vice president of legal and business affairs and assistant general counsel at Hallmark Media.

Leslie Park at her desk at Hallmark Media

“I enjoy being a full-fledged entertainment lawyer,” she says. “I know how a movie is made, the legal and real-life issues, intellectual property matters, how to handle talent and labor disputes, as well as how to comply with ever-changing privacy laws. Hallmark Media produces over 100 movies a year on a very tight schedule, and if something falls off the radar on my watch that impacts the business.”

Other responsibilities include negotiating different kinds of commercial agreements to support all aspects of Hallmark Media, including content acquisition, strategic alliance, software licenses, data processing agreements, IP licensing, and various types of vendor, consulting and service agreements, as well as advising management on legal issues related to entertainment and media law. She also deals with privacy and data security, advising on marketing initiatives, global procurement, and research and analysis of FCC and FTC rules.

“Entertainment law is relatively new when you compare it to something like real estate law or estate planning. There is no set checklist on what to do, as the industry is constantly evolving…I like to look at my role as being a pioneer in figuring out this new way that people consume entertainment and the rules of not only entertainment law but the marketplace.”

Leslie Park L’95

The perks of the job are glamorous, too, as she has walked Hollywood’s red carpet, meeting celebrities like Florence Henderson, Jack Wagner and Rick Schroder, who have frequently appeared in Hallmark movies.

Entertainment law has certainly seen changes since she began working for Hallmark Media, particularly in the way the company produces and secures the amount of content needed to keep viewers watching its channels and streaming service 24 hours a day.

Leslie Park works in a conference room with her colleagues

“Early on it was just TV, VCRs or DVDs, but today content comes from all over the place. It used to be about working with just a handful of studios, but now there are so many different players in the space, from streaming services like Hulu and Netflix to independent producers and more,” says Park. “Entertainment law is relatively new when you compare it to something like real estate law or estate planning. There is no set checklist on what to do, as the industry is constantly evolving. Now, the same content is being sliced and diced into so many slivers so that providers can sell it both domestically and internationally, and that comes with a host of legalities. I like to look at my role as being a pioneer in figuring out this new way that people consume entertainment and the rules of not only entertainment law but the marketplace.”

“Watching that movie as a little girl, I dreamed of being a strong female lawyer,” she says. “I never dreamed then that I’d accomplish that by working in the entertainment business. I am thankful for the solid foundation Syracuse Law gave me that led to what I’ve accomplished in my career.”