The First Amendment and Putting a Muzzle on Donald Trump

There was quite a bit of drama a few weeks ago when Trump violated the gag order in the New York Manhattan case, which you can read about here. As a result, Trump was fined

But now I’ll focus on what’s happening with the much broader (and more complex) gag order proceedings in the J6 / DOJ case.

To begin with, please see this blog post I wrote a few weeks ago called Trump, Gag Orders, and the First Amendment. If you read it, you will have a good sense of the law and the potential pitfalls. This will answer a lot of the questions you’re likely to have including, “Why don’t they just lock him up already?”

Here is a timeline of what has happened so far (I find timelines helpful)

September 15: The DOJ requested a gag order for Trump. The request is here. Basically, the DOJ wanted the court to stop Trump from:

• • Talking about the credibility of prospective witnesses
  • Making any “disparaging” statements about protective witnesses, parties, court personnel

The rationale was that Trump knows his words incite violence.

One problem is that the government is a party in a criminal case, and what the DOJ asked for would prevent Trump from criticizing the government. (Also as I mentioned in the blog post, there is something not quite right about a judge issuing a government order that a citizen cannot criticize her.)

On, September 25: Trump opposed the gag order. (I linked to it and explained it here (in the blog post I referred you to earlier.)

October 17: After a lengthy hearing, Chutkan issued the gag order. (It is here.) She wrote three pages because the issues are difficult. It isn’t a slam dunk in the Shut Him Up department.

Here is the key part of the order:

All interested parties in this matter, including the parties and their counsel, are prohibited from making any public statements, or directing others to make any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.

What this means:

Trump can criticize the government generally, including the current administration. He can accuse the government and the DOJ of targeting him with a political indictment. But he cannot go after the special counsel personally or any of the staff.

Similarly, the prosecution can’t publically attack the defense counsel or their staff. (None of them are actually doing this, of course. The judge no doubt added this for reciprocity.)

Notice that the judge left herself out of it, which I think was smart.

She uses the word “target,” which is not clear. Does that mean he can’t mention them? Say anything at all negative about them?

Finally, Trump is precluded from attacking, “any reasonably foreseeable witness or the substance of their testimony.” This is the tricky part because many of the witnesses are public figures and you know (because you read the blog I offered) that a cornerstone of the First Amendment is that citizens can criticize public figures.

Erwin Chemerinsky thinks the order is unconstitutional

Erwin Chemerinsky, a leading constitutional scholar (who, unlike other well-known constitutional scholars, does not shoot off his mouth without thinking) has called the order unconstitutional. You can read his arguments here. Specifically, he says that “basic 1st Amendment principles cast serious doubt on the judge’s order.” He says that the prior restraint is a problem, as is the clear desire to protect the special counsel (a government official) from harsh criticism.

(Because you read this piece I gave you, you know why these things are problematic.) Chemerinsky offers other reasons as well: The witnesses are public officials and it is unlikely that someone like William Barr will feel intimidated by Trump.

October 17: Trump filed a notice of appeal. (This isn’t the appeal itself. This is just a notice that he will be filing one.)

October 20: Trump filed a motion requesting a stay on the gag order until the appeal was heard. 

In typical Trump fashion, he opens by casting himself as super special:

No Court in American history has imposed a gag order on a criminal defendant who is campaigning for public office—least of all, on the leading candidate for President of the United States.

(Yeah well, duh. Maybe that’s because no candidate for president has been charged with 91 criminal indictments and is stupidly attacking the court and prosecutor and witnesses.)

But he does make a few decent arguments. He says that the prosecution never alleged much less offered evidence that his speech was criminal incitement. He raises particular problems with content-based prior restraints. He points out something I put in the blog post I referred you to: The case law the court relies on is about protecting a defendant from other people by shutting up other people. In other words, in the past, officials and lawyers and the press were silenced because their language might hurt the defendant’s chance of a fair trial. Here, Trump is the one being silenced.

He argues for a temporary stay by citing the law that says that”orders restricting the freedom of expression for even minimal time periods impose per se irreparable injury.” 

Also on October 20, Judge Chutkan temporarily lifted the partial gag order she had imposed. Here was her order:

MINUTE ORDER as to DONALD J. TRUMP: Upon consideration of Defendant’s opposed 110 Motion for Stay Pending Appeal, Request for Temporary Administrative Stay, and Memorandum in Support, it is hereby ORDERED that the court’s 105 Opinion and Order is administratively STAYED to permit the parties’ briefing and the court’s consideration of Defendant’s Motion. It is FURTHER ORDERED that the government shall file any opposition to Defendant’s Motion by October 25, 2023, and that Defendant shall file any Reply by October 28, 2023. Signed by Judge Tanya S. Chutkan on 10/20/2023

Almost immediately after the judge temporarily paused the gag order, Trump did a post on Truth Social calling Jack Smith “deranged” which was one of the things the judge wanted him not to do. This tells me that Trump understands exactly where the limits are, and he intends to go right up to the line.

I’ll bet you didn’t know that criminal procedure and First Amendment law were this interesting.

Aaaand . . . the government has filed its opposition to the stay, which you can see here.