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Trump is gagged. Now what?
It seems like a question of when, not if, he violates it.
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Donald Trump has finally done it.
He finally managed to make himself so obnoxious that a federal judge slapped a gag order on him in the DC election interference case. All it took was calling for Gen. Mark Milley’s execution, labeling Mike Pence “delusional,” threatening retribution to his enemies, doxxing Special Counsel Jack Smith’s wife, and calling the prosecutor a “thug” roughly 500 times.
You’d think after working so hard to get a court to notice his social media posts, the former president would finally be happy. But no!
“Today’s decision is an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden, who was granted the right to muzzle his political opponent, the leading candidate for the Presidency in 2024, and the most popular political leader in America, President Donald J. Trump,” his campaign screamed in a statement blasted out after Judge Tanya Chutkan made her ruling from the bench on Monday.
Trump followed up by whining to a crowd in Iowa that Judge Chutkan hates him.
“Her whole life is not liking me,” he vamped. “You know what a gag order is? You can’t speak badly about your opponent.”
This is nonsense, of course. Trump spent the day as he always does, howling about President Biden and Florida Gov. Ron DeSantis.
“Crooked Joe Biden told the DOJ to Indict TRUMP hoping that it would help him in his campaign against me and the Republicans. In other words, he indicted his Political Opponent,” he ranted on Truth Social. “They are now called the Biden Indictments, and nothing like this has ever happened in the USA before!”
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Trump went on to attack New York Attorney General Letitia James and called her a “racist.” He still claimed that New York Supreme Court Justice Arthur Engoron is a fraud. And he still posted links to cranks like Laura Loomer “speaking badly about his opponent.”
What he didn’t do was call Special Counsel Jack Smith a “thug,” attack any of the witnesses against him, or post the names of any of the prosecutors working on his DC election interference case — all of which suggests that Trump knows perfectly well what that gag order says, and is being as incendiary as possible without running afoul of it.
One weird trick to make all judges hate you
A month ago, prosecutors in Trump’s DC case asked Judge Chutkan to impose an order to “ensure that extrajudicial statements do not prejudice these proceedings.”
“Since the indictment in this case, the defendant has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses,” they wrote. “Like his previous public disinformation campaign regarding the 2020 presidential election, the defendant’s recent extrajudicial statements are intended to undermine public confidence in an institution — the judicial system — and to undermine confidence in and intimidate individuals — the Court, the jury pool, witnesses, and prosecutors.”
Judge Chutkan scheduled a hearing for October 16, but knowing that his comments were under scrutiny doesn’t appear to have affected Trump’s behavior a bit. He went on to call for Milley’s execution, and was even posting invective about the case on the eve of the hearing itself.
That was dumb.
But not nearly as dumb as posting a picture of New York Supreme Court Justice Arthur Engoron’s clerk, falsely labeling her as Senator Chuck Schumer’s “girlfriend.” Judges are tremendously protective of their staff, and this attack was something even his own lawyers wouldn’t defend.
“Consider this statement a gag order forbidding all parties from posting, emailing, or speaking publicly about any members of my staff,” Justice Engoron announced furiously from the bench. The post was removed from Truth Social, but not from Trump’s website, which reportedly could land him in fresh trouble during a hearing Friday morning. Either way, no one on Trump’s legal team has said a word about Engoron’s limited gag order since, even as they moan daily about the infringement of his sacred First Amendment rights.
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But it did come up on Monday during the hearing before Judge Chutkan, who seemed genuinely shocked at “the defendant's apparent willingness to post personally identifying information, as well as disparaging and obviously untrue remarks about court personnel, even after he was on notice that the government was seeking a gag order in this case.”
“Let me give you a hypothetical,” she said to Trump’s attorney John Lauro. “Would it be appropriate for Mr. Trump to post a photograph of a member of my staff online while this case is pending?”
“If President Trump asks for my advice with respect to that issue, I would advise him strongly not to do that, for a number of reasons. So in answer to your question,” Lauro hedged, before being cut off.
“That really wasn't my question,” Judge Chutkan replied.
The best Lauro could manage was a promise that he’d convey the court’s orders to his client, to which the judge responded that she hadn’t issued any orders, and that was, in fact, why they were having a hearing. Lauro then returned to his regular posture of decrying the “effort by the Biden administration to censor their leading opponent during a political campaign” and pretending that gag orders violate the First Amendment if they’re issued during a political campaign.
“Mr. Lauro, let me stop you. Mr. Trump is a criminal defendant,” Judge Chutkan sighed. “He is facing four felony charges. He is under the supervision of the criminal justice system, and he must comply with the conditions of release. He does not have the right to say and do exactly as he pleases.”
What does the order actually say?
This was hardly the big win for the government Trump has been whining about. Prosecutors asked the court to ban Trump from making inflammatory statements about: (1) the city of DC and potential jurors; (2) the Biden administration and the Justice Department; (3) Special Prosecutor Jack Smith and his team; (4) judges and their staff; and (5) potential witnesses. They also wanted the judge to supervise any survey of potential jurors, for fear of poisoning the jury pool.
The court rejected the last request entirely, as well as (1), (2), and the part of (4) which pertains to the judge herself. In fact, the text of the limited gag order specifies that Trump remains free to say whatever demented thing he likes about our nation’s capital, political persecution by President Biden, and even the “campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.”
RELATED FROM PN: Trump demands trial delay to wade through classified docs he stole
He just can’t call in a troll storm on court staff, endanger witnesses, or prejudice the case by making incendiary statements about the prosecution. And the fact that Trump very carefully tiptoed around these restrictions in the days since the order came down demonstrates that he understands it perfectly well. So when Trump whines to his fans, “You know what a gag order is? You can’t speak badly about your opponent,” he is LYING.
And that, too, is protected by this ruling.
So what happens if (when) Trump violates the gag order?
Thus far, Trump has managed to stay within the confines of Judge Chutkan’s order, which he immediately appealed to the DC Circuit. But Trump has made a career out of going all the way up to the line — and then ten steps over it. Assuming the appellate court allows the order to stand, what will Judge Chutkan do when he inevitably violates it?
There’s really no precedent for throwing a defendant with a secret service detail in jail pending trial, and Chutkan acknowledged this difficulty at Monday’s hearing.
“I've stressed that this case is going to proceed as any other case, that this defendant is going to be treated the same as any other defendant, but there are realities that we have to face because the defendant is a former president,” the judge noted. “There are accommodations I have made, for instance, allowing the defendant to — waiving his presence today, which I have done occasionally but not often.”
“An order is sort of pointless if you don't have a mechanism to enforce it,” the judge went on, querying Assistant US Attorney Molly Gaston as to the appropriate remedy for a breach: “Would you be asking for revocation of supervised release? Financial penalties? Home detention? Criminal contempt? Moving the trial date up? How would that work?”
Note: None of these options involves handcuffs and a cell.
The prosecutor agreed that all those options should be on the table and noted that Trump’s buddy Roger Stone was barred from social media after a social media post featuring Judge Chutkan’s colleague Judge Amy Berman Jackson with crosshairs. This was also an oblique reminder to the court that Trump tweeted racist invective to his millions of followers about the jury foreperson in that case.
Asked the same question, Lauro demurred that it would be “impossible to say because I can't conceive of an order that would be lawful.” But he also said that it was protected political speech for Trump to attack Jack Smith’s wife … so make of that one what you will.
In the end, it’s highly unlikely that Trump will be taken into custody for violating this order. It seems much more probable that he’ll be hauled into court and yelled at, or fined, as he was in the leadup to the New York civil case when he defied Justice Engoron’s order to comply with the AG’s subpoena.
As of now, he appears to be content to shout that he’s not allowed to speak, and fundraise prodigiously off the order. It’s the Newspeak, and everyone in Trumpland is well-fluent.
“I’m sitting here thinking George Orwell would have a field day with what we're hearing from these prosecutors,” Lauro complained in court.
“George Orwell would definitely have a field day,” Judge Chutkan agreed.
That’s it for this week
We’ll be back with more Monday. If you appreciate this post, please support Public Notice by signing up. Paid subscribers make this work possible.