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Gagging Trump ... or not?
You can't shut him up.
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Donald Trump is a problem for American democracy, but he’s also a problem for the courts. What should judges do when faced with a defendant who wields the world’s biggest microphone and will not shut up about his case?
For the most part, the answer has been nothing.
Trump routinely lobbed insults at advice columnist E. Jean Carroll after she sued him in 2019 for sexual abuse and defamation. Carroll’s lawyers never sought a gag order, and in fact used one of his more incendiary Truth Social posts from October 2022 as the basis of her second defamation suit, filed in November of that year. Judge Lewis Kapan largely shrugged off Trump’s constant screeching about the case, only warning his lawyers about jury tampering when Trump posted excluded evidence during the trial itself.
In Trump’s civil fraud case, New York Attorney General Letitia James studiously ignored Trump’s constant name-calling. And like Judge Kaplan, New York Supreme Court Justice Arthur Engoron turned a deaf ear to Trump’s torrent of abuse. In that case, though, there’s no jury to tamper with, and so Trump’s fate rests in the hands of the man he daily decries as a Marxist Democrat plant.
Trump crossed a line on Tuesday with a social media post attacking Justice Engoron’s law clerk, whom he called “Schumer’s girlfriend,” screenshotting a deleted satirical story falsely connecting her with Senate Majority Leader Chuck Schumer. This was wildly ill-judged — judges are extraordinarily protective of their clerks.
“Personal attacks on members of my court staff are unacceptable, inappropriate, and I will not tolerate them under any circumstances,” Justice Engoron said on the record after a long lunchtime conference with the parties in chambers threatening “serious sanctions” for anyone who violated his edict.
But even this gross breach was met with nothing more than a stern admonition from the court not to do it again, rather than a blanket ban on commenting on the case.
“Consider this statement a gag order forbidding all parties from posting, emailing, or speaking publicly about any members of my staff,” he warned, before resuming the afternoon hearing, according to a report from The Daily Beast.
But Special Counsel Jack Smith has taken a different tack, pushing back against Trump and his lawyers’ public comments about the election interference prosecution and asking Judge Tanya Chutkan to intervene to prevent prejudice to the case.
“Since the grand jury returned an indictment in this case, the defendant has repeatedly and widely disseminated public statements attacking the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses,” Smith wrote in a motion unsealed on September 15 requesting that Judge Chutkan issue a “narrowly tailored protective order” which “restricts certain prejudicial extrajudicial statements.”
In plain English, prosecutors want a gag order to stop Trump poisoning the jury pool, endangering prosecutors, and intimidating witnesses.
Attacking witnesses as a way of life
Trump’s habit of using his giant megaphone to focus his followers’ wrath on his political opponents is well-known. In the aftermath of his 2020 election loss, Trump’s social media posts provoked a torrent of harassment and death threats against Georgia’s Secretary of State Brad Raffensperger, Gov. Brian Kemp, and former Lt. Gov. Geoff Duncan, as well as Atlanta poll workers Ruby Freeman and Shaye Moss.
In just the past two months, Trump attacked multiple witnesses in the case. He called Mike Pence “delusional” and accused him of “mak[ing] up stories about me.” He told Kristen Welker on “Meet the Press” that Bill Barr “didn’t do his job” because he was afraid of being impeached. He said that Duncan “shouldn’t” testify to the grand jury. And he called for Gen. Mark Milley, whom he appointed chair of the Joint Chiefs of Staff, to be executed for treason.
Trump’s constant inveighing against Judge Chutkan already inspired one of his supporters to threaten her life. On August 5, a woman in Texas left a voicemail in the judge’s chambers calling her a “stupid slave n-----” and promising "if Trump doesn't get elected in 2024, we are coming to kill you.”
Trump has also used his platform to disseminate false information about evidence in this case. In multiple posts, he spread the lie that Special Counsel Jack Smith got caught taking his marching orders from President Biden.
In reality, prosecutors went to the White House to interview a witness, a fact known to Trump and his lawyers, who have had the notes from that interview since June when they were turned over in discovery. Trump made similar false claims in August about a judicially authorized warrant to search his Twitter account, which he called an "atrocity" and a “major ‘hit’ on my civil rights.” Here again, Trump’s legal team has known about the warrant since July.
As the special counsel points out, this misinformation poisons the jury pool. In fact, Trump and his lawyers have made it clear that they intend to try this case in the press, huffing, “In a trial about First Amendment rights, the government seeks to restrict First Amendment rights.”
And indeed they do have First Amendment rights, although hurling invective at potential jurors and then demanding that your case be transferred to West Virginia for “diversity” since you can’t get a fair trial in DC is more or less the textbook definition of “unclean hands.”
Trump responded to the government’s motion for a protective order with a truly bizarre “Opposition to Prosecution’s Motion for Prior Restraints.” It was, as usual, heavy on the histrionics and laden down with arguments suitable for Fox News, but not a court of law. For instance, Trump accused prosecutors of poisoning the jury pool with their indictment and complained that the proposed order would gag Trump “while giving President Biden and his surrogates (including those in the corporate media) free reign [sic] to say whatever they want.”
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Trump’s lawyers know perfectly well that protective orders apply to out-of-court statements by parties to the case. And they also know that the standard for a protective order is not the one for incitement, or threats, or clear and present danger — although they try to benchmark using all three of them. As prosecutors note, the Supreme Court held in a 1991 case called Gentile v. State Bar of Nevada that judges may restrict out-of-court statements which pose “a substantial likelihood of material prejudice” to the case. And any other defendant who behaved the way Trump does would have long ago been gagged.
So why haven’t courts moved to restrain Trump?
Putting the squeeze on Trump’s lawyers
Shorn of all of the BS, Trump’s argument against a gag order boils down to “I’m running for president, and telling me to keep quiet is going to be a massive interference in the political process.” There’s also an unspoken element of “You and what army?”
The reality is that, absent a conviction, no judge is going to lock up the former president, who is running to return to office and who has a secret service detail and millions of angry followers. In some sense, every party to this transaction already knows that the court simply cannot treat Trump like any other defendant. And so they’re trying to fashion a solution which will nudge the former president to behave slightly better, knowing that a severe restriction is likely to provoke a showdown which will gum up the works for everyone.
In practical effect, this boils down to putting the squeeze on Trump’s lawyers and hoping that they’ll do their best to keep their client in line.
In an earlier round of motions, prosecutors argued for a protective order blocking Trump from disclosing any evidence turned over in discovery. Trump’s lawyers howled that this was a violation of their client’s First Amendment rights, just as they’re doing now. Judge Chutkan wound up imposing a narrower order blocking the disclosure of “sensitive information” such as grand jury transcripts, witness interviews, and personally identifying information. In practical effect, she ordered Trump not to post witness information on Truth Social.
But more than that, she imposed an obligation on Trump’s lawyers to safeguard that information by refusing to let Trump keep copies or take notes on it. And she put the kibosh on Trump’s plans to share that information with “volunteer attorneys or others without paid employment arrangements to assist with the preparation of this case” — a category of people which might include unindicted co-conspirators like Rudy Giuliani, Sidney Powell, and Trump’s fixer Boris Epshteyn. By placing the onus on Trump’s counsel to control the flow of sensitive information, Judge Chutkan has so far managed to keep Trump from posting it online. Because while no judge wants the chaos that will come from sanctioning Donald Trump for his speech, they’ll happily sanction his lawyers in a heartbeat.
Trump’s desire to postpone his trial provides another lever Judge Chutkan can use to keep him in line. At an August hearing on the parameters of the first protective order, she tacitly warned Trump that the more he potentially poisoned the jury pool, the less inclined she would be to delay the trial.
“Even arguably ambiguous statements from parties or their counsel, if they can be reasonably interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process,” she said. “The more a party makes inflammatory statements about this case which could taint the jury pool … the greater the urgency will be that we proceed to trial quickly.”
Judge Chutkan has scheduled an October 16 hearing on the motion for a gag order. This would not appear to indicate that she views the matter of Trump’s social media posts as particularly urgent. In the meantime, the former president has directed most of his ranting toward Justice Engoron as the New York trial unfolds this week. Perhaps the sheer volume of Trump’s legal woes will keep him out of trouble with judges, if only because every time he gets tempted to do something deeply damaging in one case, he’ll be distracted by proceedings in another.
That’s it for today
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