The proverbial prize for baffling commentary on the Trump trial was recently snatched by none other than Alan Dershowitz himself, who has seemingly confused right to free speech with the obligation to maintain trial integrity. In a recent debate on Sean Hannity’s show, Dershowitz vehemently argued that preventing a defendant from attacking witnesses and judges infringes upon constitutional rights, a claim that is likely news to the DC Circuit. Notably, the DC Circuit ruled last December that limiting a defendant’s public statements about known witnesses or trial participants does not violate the Constitution when such speech might prejudicially impact the trial’s integrity.
The presiding Judge in Trump’s false business records trial, Justice Juan Merchan, drafted his own gag order using the DC Circuit’s ruling as a reference to ensure its constitutional validity. Despite Trump’s subsequent appeal, the First Judicial Department declined to issue an injunction against this order.
But Dershowitz’s attempts to stir controversy don’t just end there. In a rather surprising assertion, he exclaimed that the prosecution’s objection to a defendant leaving court was unconstitutional, also claiming that consent motions are similarly ‘unconstitutional’. He opined that Trump’s lawyers should challenge the case immediately under Section 340.50, which allows a judge to permit a defendant to leave the courtroom, contingent on the prosecution’s consent.
However, such an argument mirrors a previous 2019 plea where the defendant claimed his traffic ticket conviction should be quashed because his court appearance waiver was disregarded. Justice Phillip Roche, who presided over the case, did overturn the conviction, but for reasons that hardly align with Dershowitz’s stance on the Trump trial. In fact, Roche’s decision highlighted that statutory law permits waiver of appearance for charges in local court, contrasting sharply with felony charges that mandate the defendant’s presence at trial.
As for a defendant’s right to be present during indictment, § 260.20 allows for the removal of the defendant from the courtroom if their continued disruptive behavior obstructs the trial’s progression, despite prior warnings.
We’ll keep our eyes peeled for Dershowitz’s next appearance on Hannity, where he will no doubt continue his countdown of constitutional interpretations, all while ignoring the actual rulings of the courts.
For documents regarding Trump’s case, refer to Just Security.