There are two basic rationales for imposing a gag order on a criminal defendant, to prevent him from intimidating witnesses against him and to preserve the integrity of the proceedings by preventing improper influence of the jury pool. But then, rarely is a criminal defendant a serious candidate for public office. What’s a judge to do?
“They put a gag order on me, and I’m not supposed to be talking about things that bad people do, and so we’ll be appealing very quickly,” Mr. Trump said on Monday at a campaign stop in Iowa. He added, “I’ll be the only politician in history where I won’t be allowed to criticize people.”
Granted, this is a nonsensical characterization of the second gag order imposed by Judge Tanya Chutkan, but then Trump’s strength has never been factual accuracy.
A judge imposed a limited gag order on former President Donald J. Trump on Monday, restricting Mr. Trump from making public statements attacking the witnesses and specific prosecutors or court staff members involved in the federal case concerning his efforts to overturn the 2020 election.
Mr. Trump’s free speech rights do not permit him “to launch a pretrial smear campaign” against those people, said the judge, Tanya S. Chutkan.
“No other defendant would be allowed to do so,” Judge Chutkan added, “and I’m not going to allow it in this case.”
By “those people,” Judge Chutkan speaks of the prosecutors and witnesses in the case against Trump. Not covered by the order were Biden, the Justice Department in general and, more or less, the judge herself.
She repeatedly said that Mr. Trump should not enjoy any special privileges as a presidential candidate. She added that she was simply seeking to protect people involved in the election interference case from being threatened, and to keep Mr. Trump’s bullying remarks from spiraling into violence.
“This trial will not yield to the election cycle,” Judge Chutkan said.
Is it fair commentary for Trump to call the special prosecutor, Jack Smith, “deranged” at every opportunity? What if the concern isn’t that Trump is saying mean things about him, but that a certain cohort of Trump supporters believes he is calling upon them to engage in violence to save Trump from this “deranged” person? It’s not as if death threats aren’t already happening, or that cohort of Trump supporters hasn’t already demonstrated its inclination to engage in violence.
But like it or not, Trump remains the leading candidate for the Republican nominee for the presidency. His multiple prosecutions are very much a significant factor in his candidacy, and as a candidate, addressing their merit and motivation is hardly unreasonable, even if a more competent candidate would do so in less outrageous and hyperbolic language.
Mr. Lauro, often using exaggerated language, sought to portray Mr. Trump as the victim of the government’s “tyranny” and “totalitarianism.” He tried to reframe the former president’s public statements, saying they were merely examples of “speaking truth against oppression,” and he baselessly portrayed President Biden as having directed the case against Mr. Trump.
At one point, the tensions nearly boiled over as Judge Chutkan noted that Mr. Lauro was speaking as much to his client, Mr. Trump, as he was to her, and warned him to “tone this down a bit.” Mr. Lauro responded by accusing the judge of trying to censor his own speech.
Seizing upon the rhetoric of victimhood, speaking truth to power, may seem laughable to some, but all candidates for office spin arguments in whichever direction serves their interest. While Trump’s attorney, John Lauro, certainly knows that it’s Judge Chutkan who will be making the decision, and that his choice of hyperbolic argumentation was facially counterproductive as far as persuading Judge Chutkan, even the defense arguments in the case are very much a part of Trump’s candidacy pitch. While the court may not yield to the election cycle, the election cycle won’t yield to the court either.
We are in uncharted waters here, with a presidential candidate being prosecuted while simultaneously campaigning for office. Sure, Trump’s rhetoric is vicious, outrageous and ignorant, but that’s his brand and his supporters love it. Is he supposed to campaign but not be him? Where is the line to be drawn? Can a line be drawn?
While Judge Chutkan’s gag order is very limited, narrowly tailored to meet the constraints of preserving the appropriate purposes of a criminal prosecution, those purposes are in direct conflict with the ability of a candidate to hit the road and express his bile against all enemies, foreign and domestic. Can any gag order on a presidential candidate not unconstitutionally restrict his right to be as vile as he wants to be?
*Tuesday Talk rules apply, within reason.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
A prosecutor has power the likes of which the defendant does not: the power to seek to convict and imprison, in short, the power to strip freedom, if done by the rules. Hence, the rules regarding public comment have always been aimed largely at preserving a shot at a fair trial for the accused, not so much the state. Jurors ordinarily walk in and presume guilt anyway. And too, those rules usually aim at mouthy lawyers. Gag orders are always problematic when weighed against free speech and politics, from the get-go. Gag orders are NOT usually aimed at the accused or the state’s witnesses. And prosecutors ordinarily sit back and lick their chops when an accused spouts off. That has been seen often already with Trump. Presumably those in the prospective jury pool already have political opinions about Trump. To me, then, unless and until Trump makes an actionable threat, no gag order ought to issue. And if in fact at here is an actionable threat issued, a prosecutor can charge the accused with witness tampering. This order seems useless for the usual gag order purposes and, to me at least, unconstitutional as applied to someone running for that office. And maybe not good strategy by Smith either.
Should the right to free speech vary according to whether a person is a candidate for political office?
Are the rights of a leading candidate different to those of a fringe candidate?
At first blush, I would say that all defendants should have the same freedom of political expression.
Usually, that should include the freedom to complain that the charge against them is politically motivated. After all, one day, that might be true.
The more Trump is allowed to say, the more anyone outside of MAGALand realizes that no matter how bad Biden, Harris and the left may be, this nutjob can never be president again. Trump is by far the best argument against Trump. Let him speak all he wants.
Easy for you to say to let him speak. You are not one of the potential witnesses, etc. that have to deal with him and his MAGA followers.
Judge Chutkan also said;
“One could come away from these arguments with a mistaken understanding that the First Amendment is an absolute right,” Chutkan said Monday. “That is false. The First Amendment yields to the administration of justice.”
“In what kind of case do you think it would be appropriate for a criminal defendant to call the prosecutor a thug and stay on the streets?” the judge asked Trump attorney John Lauro. “‘Will no one rid me of this meddlesome priest’ comes to mind.”
So what would happen to Trump if one of his deranged followers did actually harm someone that he had directed vitriol at? Would he be able to throw his hands up in surprise and continue to avoid accountability?
In the event that someone does react with violence following one of Trump’s outbursts, fingers would be pointed at the judge if she hadn’t addressed the possibility with this partial gag order.
Former Solicitor General Neal Katyal observed, “The crazy part of this situation is not that a judge issued a gag order against a leading presidential candidate. The crazy part is that a leading presidential candidate has made a habit of threatening and attacking witnesses and prosecutors and court officials.”
Katyal also opined, “no criminal defendant in their right mind would act the way Donald Trump is”. If Il Douche was concerned w/ winning his court case, he’d not behave as he has. He’s performing for his base and campaigning for president.
I’d like to believe, as Miles suggested above, that Il Douche will so irritate/ alienate the electorate with the insults/ inanities he propounds that he’s effectively the best advertisement/ argument against his being reelected. However, despite his claims to the contrary, I believe that he’s terrified at the prospect of going to prison and is willing to invite/ encourage violence and even civil war in an effort to avoid this. IMO, Judge Chutkan made the right call.
Of course, I suffer from a likely incurable case of TDS and YMMV.
Everything that they do “against” Trump ends up helping him. Every attack by the media or the “deep state” increases the size of his base (now apparently about half of the country) and solidifies their support for him, while feeding the TDS of the other half, getting the entire country fully engaged in this hero’s (antihero’s) journey. These judges and prosecutors are not idiots (not all of them). The obvious conclusion is that it is all part of the show. The supporting actors create exciting challenges for the star to overcome.
I think people are reading too much into this.
Maybe the judge is just tired of hearing Trump talk.