In a blog post I wrote a few weeks ago, Trump, Gag Orders, and the First Amendment, I laid out the problems with prior restraints and preventing citizens from criticizing the government.
The D.C. gag order began on September 15, The DOJ requested a gag order for Trump. The request is here. Basically, the DOJ wanted the court to stop Trump from:
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- 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.
Trump, of course, opposed the gag order.
On October 17, after a lengthy hearing, Chutkan issued the gag order. (It is here.) Here is the key part of the order:
Here are the possible problems:
First, the special counsel is a public figure and, as I explained here, courts are reluctant to prevent citizens from criticizing public figures, particularly those who hold government power. The primary basis of freedom of speech and the press is to allow citizens to criticize the government.
In contrast, the gag order in the Manhattan case prevents Trump from talking about the court clerk, who is not a public figure. Trump tried to argue that she was, but that argument didn’t fly.
Second, the order uses the word “target” which is vague. Does that mean he can’t mention them? Say anything at all negative about them?
In contrast, the gag order in the Manhattan case prevented Trump from making public statements about the court clerk. His argument is that the clerk is preventing him from getting a fair trial. Nothing stops him from mentioning her in court filings and appeals, which is the place to argue that he isn’t getting a fair trial.
Third, 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.
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.
We are currently waiting for the appellate court to issue a decision.
I think we can expect the order to be modified.
With ghost writers, he could author a text on how to dismantle democracy and the rule of law, along three easy axes: delay, denial, and deconstruction.
Is the next step for the Judge now to call another hearing on a revised gag order? If so, when?
Many thanks.
Aaaand, does the gag order stay under Judge Chutken’s jurisdiction, or does it now move to under The Court of Appeal’s jurisdiction ?
Trump clearly knows exactly where the line is, and as you say he will walk right up to it every time. It is interesting that the moment the limited gag order was stayed, he immediately did precisely what the order said not to do.
Is there any chance that Judge Chutkan will follow her previous suggestion before any gag orders of going back to her original conditions of release and then moving the trial date up each time Trump violates those conditions? The trial is currently set for early March. Might we see it move into February or even January before this is over?
Also, since the narrow gag order in NY State is still in place, do any of his antics in D.C. violate that?
I don’t think it’s clear what Chutkan will do if the order is violated.
The gag order in New York was specifically geared to preventing Trump from talking about court personnel, so they are entirely separate.
Consider that many of the Jan 6 defendants, at their sentencing for their guilty pleas or findings, said that they committed their crimes because the Commander-in-Chief sent them there, some maybe even in Chutkan’s courtroom. How can anyone argue that Trump’s words do not incite violence and criminal behaviors?
Imagine a court of law where the evidence was, “Sam said that he committed violence because of something Bob said. Therefore, Bob was guilty of a crime and should be silenced with a gag order.”
Does that sound fair to you? It isn’t of course, and the law doesn’t work that way.
If the law did work that way, we would be living in a regime far more oppressive than Stalin’s Russia.
“far more oppressive than Stalin’s Russia”
Is this with or without the mass slaughter and starvation?
At some point, this is absurd. Maybe, a link to a history of Stalin’s Russia will help you.
Really TWO separate issues here: (1) is Trump’s ( lawyer’s) assertion that “Trump’s words do not incite crimes” a valid, factual argument, given that some number of convicted felons have testified that they committed their crimes due to Trump’s words; and (2) separately, does, in a court of law, (your area of expertise) peoples’ assertions that their motivation for their actions/crimes was due to the words and exhortations of some other individual have any legal weight?? Are you saying that if a dozen people all said “we robbed the bank because Sam said that we should”, that Sam would have NO legal exposure?
Isn’t this how Charlie Manson ended up in prison? And all constitutional scholars, and all judges, express opinions. Only the latter opinion really counts.
What if he is never incarcerated? Is that guaranteed? Not at all.
We are dealing with things that happened years ago. One civil suit involved something that happened decades ago. Even a conviction will likely result in an appeal. He might remain free as that happens. For years.
I appreciate the details here. Other people have been limited by gag orders. This is more than about “criticism.” Trump has done more than “criticize” over the years. He has very well incited people. The House of Representatives and 57 senators agreed he did so. For what that’s worth.
I know. The law is strict there. But, he has. Boilerplate First Amendment language is great. But, we are not arguing in a vacuum.
Also, I respect Erwin Chemerinsky, but partially since he provides an idealized view of the law beyond its current state. See, for instance, Ten Commandments displays and three strikes laws, both of which he failed to convince SCOTUS. He also isn’t exactly moderate, with things like “The Case Against the Supreme Court.”
Anyway, the regular rules should apply here. I doubt they are. Trump has regularly received special treatment, up to and including at the Supreme Court. I also don’t think he should be arrested for his remarks here. But, simply fining him a few thou and giving him lectures isn’t doing much.
Hi, Joe:
I would suggest that you read this post: https://terikanefield.com/criminallawfaqs/
See if that helps.
This comment is fairly non-responsive and sort of implies you think I don’t know the law much at all.
This is not accurate, though you don’t know me, and perhaps you are mistaken from my comment.
But, you have a lot do, including these helpful [up to a point] analysises.
So, I will move on.
Teri. I think Trump’s trying desperately to get arrested. Think what his base would do if he was? The courts should ignore him. He’s already done all the damage he can using social media. No one should feel immune from his criticisms. His incarceration should come legally, long term, and to H with his base.
Thanks for the update, Teri.
R