The Trump Gag Order
The most effective way to enforce it
For the first time in history (how many times have we said that in recent weeks?) a major candidate for president has been slapped with a gag order. Two of them, in fact.
A state court judge in New York and a federal judge in DC have placed limited gag orders on Donald Trump. As tempting as it might be to completely gag Trump for the next 13 months, the court orders raise important questions about the First Amendment, free speech and political speech.
Americans have never confronted an issue like this because we’ve never had a former president refuse to concede he lost. We’ve never had a former president in modern history run for the office again. We’ve never had a former president conduct himself in a way that led to four criminal indictments.
Federal district court judge Tanya Chutkan, presiding over the indictments dealing with Trump’s efforts to overturn the 2020 election, carefully crafted a limited gag order. After listening to arguments from federal prosecutors and Trump’s lawyers, Chutkan correctly interpreted the law, writing “Under binding Supreme Court precedent, this court ‘must take such steps by rule and regulation that will protect [its] processes from prejudicial outside interferences.’ The First Amendment does not override that obligation.”
She is rightly concerned that Trump’s comments outside court will cause court staff and witnesses to be threatened or intimidated by those who like to attack anyone who stands up to Trump. For proof of how scary it can be to be targeted by Trump, look no further than the two poll workers in Georgia who had to move out of their house because of threats to their safety.
The court order is narrowly constructed. ALL parties, not just Trump, are prohibited from making statements that target the Special Counsel or his staff, defense counsel, court staff or any foreseeable witness. Trump is free to criticize the Justice Department, the judge and notably, President Biden.
That not-so-subtle point was lost on Trump, though, who said in Des Moines this week, “I’ll be the only politician in history that runs with a gag order where I’m not allowed to criticize people. Can you believe that? I’m not allowed to criticize people.” That is simply not true.
Trump went on to say, “The judge doesn’t like me too much. Her whole life is not liking me. You know what a gag order is? You can’t speak badly about your opponent.” Again, that line got a hearty round of applause from his admiring crowd, but it’s false. Trump is free to criticize Biden as much as he wants.
Left unsaid by the judge is what the penalty will be should Trump step over the line. Unlike state judges, federal judges are not able to fine people who break the rules. The consequences in this case would require federal prosecutors to file more charges against Trump for disobeying a judge’s order. That would require a separate trial in federal court.
We’ll see if Trump obeys the order. My guess is he will push it, get close to the line, and ultimately step over it. He’s like the grade school brat who talks too much in class despite the teacher warning him to be quiet. He keeps talking because he wants to prove to his admiring friends that he’s a bad boy and won’t cave to authority. A trip to the principal’s office adds to his street cred. In this case, the equivalent of the principal’s office might mean a few nights behind bars. That would give Trump the opportunity to talk about hos unfairly he’s treated and why his supporters need to send him more of their hard-earned cash.
I doubt Trump will ever be jailed. The most effective remedy for Judge Chutkan to take would be to move up the trial date earlier than it’s planned March start. She would be justified to shorten the pre-trial window where Trump can make threatening comments. Step over the line and you lose a month of trial preparation. Step over the line again, lose another month. That might get his attention.
I like to talk about the First Amendment being first because it’s so important. Our system needs to allow all politicians, all journalists, all citizens to criticize their government. Freedom of speech is a right, but it’s not an absolute right for any of us. We can’t libel people. We can’t make verbal threats. And when you’re a defendant in court, you lose some of your First Amendment rights. Trump has no one to blame but himself for being in this position.
I’d like to recommend two columns from the Iowa Writers’ Collaborative this week.
Ed Tibbett’s “Along the Mississippi” column looks at Iowa’s four members of the US House voting for Jim Jordan as House Speaker on the first ballot.
And Bleeding Heartland’s Laura Belin has an excellent analysis of promises made by Iowa legislators when they stopped taking federal funding for reproductive health services. Suffice it to say promises did not turn out to be true.
Two new members of the Iowa Writers’ Collaborative in the past week, Arnold Garson and Nicole Baart. Check them out, along with the other writers:
“I doubt Trump will ever be jailed. The most effective remedy for Judge Chutkan to take would be to move up the trial date earlier than it’s planned March start.”
Please.
With Jim Jordan's loss, Republicans now have the chance to show their strength and choose to support a House leader who's not an election denier. Election deniers are traitors to this nation. The whole Republican Party needs to come clean. If they do it together, think of how proud this nation would be of them! If Mariannette Miller Meeks can do it, despite death threats from extremists, then wouldn't there be strength in numbers? At the same time, the party could take a stand against violence! Wouldn't that be novel?!