The Latest Trump Gag Order Is Relatively Narrow but Still Raises Constitutional Questions

A federal judge barred the former president from "publicly targeting" witnesses, prosecutors, or court personnel.

U.S. District Judge Tanya Chutkan, who is presiding over Donald Trump's trial on federal charges related to his attempted reversal of Joe Biden's 2020 election victory, yesterday imposed a gag order that bars the former president from "publicly targeting" witnesses, prosecutors, or court personnel. Trump lawyer John Lauro vigorously opposed the order on First Amendment grounds, saying it would stop his client from "speak[ing] truth to oppression." While that characterization exaggerates the order's impact, constraining the speech of a criminal defendant, especially one who is in the midst of a presidential campaign, does raise largely unsettled constitutional issues.

Chutkan's order was provoked by Trump's habit of vilifying anyone who crosses him, including Special Counsel Jack Smith ("deranged"), the prosecutors he oversees (a "team of thugs"), and Chutkan herself (a "highly partisan" and "biased, Trump Hating Judge"). "IF YOU GO AFTER ME, I'M COMING AFTER YOU!" Trump wrote on Truth Social after his indictment in this case. The next day, The New York Times notes, "a Texas woman left a voice mail message for Judge Chutkan, saying, 'If Trump doesn't get elected in 2024, we are coming to kill you, so tread lightly.'"

The Times sees that threat as evidence that "some of the former president's more outrageous statements seem to have had real-world consequences." Similarly, the Associated Press notes, "a top prosecutor on Smith's team received intimidating communications after being singled out by Trump."

Earlier this month, Justice Arthur Engoron, who is presiding over the New York civil fraud case against Trump, barred him from making personal attacks on court staff after Trump posted a photograph of Engoron's law clerk, Allison Greenfield, alongside Senate Majority Leader Chuck Schumer (D–N.Y.). Trump mockingly called Greenfield "Schumer's girlfriend."

Trump also has gone after witnesses. "Before Georgia's former Republican lieutenant governor, Geoff Duncan, testified before the Atlanta grand jury that later indicted Trump and 18 others," The Wall Street Journal notes, "the former president warned him not to, calling him a 'loser' and a 'nasty disaster' on Truth Social."

This background illuminates Chutkan's concern that Trump's inflammatory statements might intimidate witnesses or otherwise compromise his trial. But she emphasized that Trump is still free to criticize the Justice Department, provided he does not engage in a "smear campaign" against prosecutors or court staff. "No other criminal defendant would be allowed to do so, and I'm not going to allow it in this case," Chutkan said. Trump "can argue that this prosecution is politically motivated," she added, but he cannot "vilify and implicitly encourage violence against public servants who are simply doing their jobs."

Chutkan, in short, expects Trump to act less like Trump and more like a person with a modicum of sense, propriety, and responsibility. "In advance of trials," the Journal notes, "most defendants are concerned about reducing their jail time or getting a good plea deal, so they don't argue about the restrictions judges routinely place on their speech rights to protect witnesses, preserve an unbiased jury pool and assure a fair hearing of the case. Lawyers' standard advice to clients is to keep quiet, avoid antagonizing the judge and let the legal team make all the public statements about the case." But Trump "regularly flouts that advice and appears prepared to litigate to aggressively defend his right to keep doing so."

Largely because criminal defendants typically do not behave this way, the Journal says, "there are few clear precedents to guide judges on how to ensure a fair and orderly trial while protecting Trump's free-speech rights as he seeks to reclaim his old office and defend his public reputation….The legality of pretrial restrictions and how they intersect with the First Amendment rights of defendants remains an underdeveloped area of the law because so few defendants have either the incentive or the financial resources to aggressively assert their free-speech rights while defending themselves against the underlying charges."

Lauro plans to appeal Chutkan's gag order. "He is allowed to make statements the prosecution doesn't like," he said during Monday's hearing. "That's part of living with the First Amendment."

In 1987, Trump's lawyers note, the U.S. Court of Appeals for the 6th Circuit rejected a gag order imposed on Rep. Harold E. Ford Sr. (D–Tenn.), who was facing corruption charges. That order prohibited Ford from making any "extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication," including any "opinion of or discussion of the evidence and facts in the investigation or case," any statement about a prosecutor, any statement about "any alleged motive the government may have had in filing the indictment," or any statement "which relates to any opinion as to…the merits of the case."

The appeals court noted that "any restrictive order involving a prior restraint upon First Amendment freedoms is presumptively void and may be upheld only on the basis of a clear showing that an exercise of First Amendment rights will interfere with the rights of the parties to a fair trial." It concluded that the order against Ford "is clearly overbroad and fails to meet the clear and present danger standard in the context of a restraint on a defendant in a criminal trial."

Federal appeals courts are split on whether to apply that standard in this context, with some opting for a less demanding test requiring a "substantial likelihood" or "reasonable likelihood" of material prejudice to a trial. In any case, the order against Ford was much broader than the one that Chutkan issued on Monday.*

Despite the relatively narrow terms of Chutkan's order, Trump portrayed it as prohibiting the sort of speech that she said it allows. "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," he said at a campaign stop in Iowa. "I'll be the only politician in history where I won't be allowed to criticize people."

Through a spokesman, Trump called Chutkan's order an "an absolute abomination." Trump himself said "A TERRIBLE THING HAPPENED TO DEMOCRACY TODAY." But he immediately took advantage of it. The order "isn't about gagging me," he wrote in an email to supporters. "It's an attempt to gag the American people." Then he asked for "a contribution of any amount."

*CORRECTION: The original version of this post mischaracterized the upshot of the 6th Circuit's ruling in Ford's case, which vacated the gag order rather than modifying it.