Alina Habba Invents a New Constitutional Right at Hush-Money Trial

Donald Trump’s attorney Alina Habba thinks it’s a violation of the First Amendment to be prohibited from attacking witnesses.

Fox News presenter John Roberts asked Habba Thursday afternoon, seemingly referring to Trump’s former fixer and attorney Michael Cohen, about why “the prosecution’s star witness can say anything that he wants and then the former president is not allowed to respond?”

“We have a dual system of justice and a very unconstitutional gag order,” Habba said, standing outside of the courthouse in Manhattan while Trump’s hush-money trial was on break. “As his legal spokeswoman, I am nervous about what I can’t say, and that is also unconstitutional.”

Under the gag order, Trump is barred from speaking publicly about courtroom staff, prosecutors, jurors, witnesses, or their family members. He has already been fined $10,000 for 10 violations, with Judge Juan Merchan threatening jail time if the former president violates the order again. Trump may have come close Wednesday when he vented on Truth Social about how “sleazebags, lowlifes, and grifters that you oppose are allowed to say absolutely anything that they want.”

On Thursday, Trump’s legal team asked Merchan to modify the gag order, saying that Trump should be allowed to reply to adult film actress Stormy Daniels’s testimony against him. The prosecution responded that Trump’s attacks put witnesses and court staff in danger, noting the increase in threats against the Manhattan district attorney’s office and their family members.

Merchan ultimately sided with the prosecution, noting that Trump does not have a good track record of measured responses, and denied the motion to modify the gag order. And with good reason: Trump has a history of attacking witnesses in his court cases. He couldn’t refrain from violating a gag order in his bank fraud trial, attacking Judge Arthur Engoron’s principal law clerk, Allison Greenfield. Even earlier than that, he had a gag order imposed in his Washington, D.C., trial related to his efforts to subvert the 2020 election.

Regardless, it’s ridiculous to suggest that intimidating witnesses to an alleged crime is protected speech under the Constitution. But it’s no surprise that Habba is making this argument, considering her own record of legal missteps and unhinged assertions. She made the boneheaded move of stating that she didn’t have high hopes for Trump’s acquittal in the hush-money case late last month, and also seemed to admit his guilt in attempting to state that he did nothing wrong.

She claimed that the New York state law requiring Trump to attend all of his criminal trial proceedings violated his right to due process because he couldn’t attend his trials in other locations. And none of this includes her missteps in his defamation trial earlier this year, where she was reprimanded a whopping 12 times in one day.

Trump is facing 34 felony charges for allegedly paying off Daniels through Cohen before the 2016 election to try and cover up an affair with her. He has pleaded not guilty to all charges.