The gag order on Trump is a response to a real concern
Witness intimidation is a bigger threat from the former president than tainting the jury pool.
Donald J. Trump is a criminal defendant four times over. But he’s also, lamentably, the frontrunner in the race for the 2024 Republican presidential nomination — a contest in which the former president has made his supposed victimization by prosecutors a key issue.
Faced with those complexities, U.S. District Judge Tanya S. Chutkan, who is presiding in Trump’s federal case involving attempts to overturn the 2020 election, had to move carefully in deciding whether and how to order Trump to control his outbursts. She seems to be doing so.
On Monday, the judge announced that she is imposing a limited order to prevent Trump and other parties in the case from attacking prosecutors, witnesses and court officials involved in the case.
Chutkan said the order allows the former president to continue to campaign for the 2024 Republican presidential nomination and claim that the case against him is politically motivated. However, he wouldn’t be permitted to “launch a pretrial smear campaign” to intimidate or discredit witnesses or court staff.
On Tuesday, the judge issued a written version of her order, prohibiting “all interested parties” 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.”
The judge was responding to a real concern. In their request for an order, prosecutors cited several inflammatory comments by Trump on social media. They included Trump’s description of the special counsel Jack Smith as “deranged,” a reference to “thug prosecutors” and a claim that Chutkan was “a biased Trump-hating judge.”
“I cannot imagine any other criminal case where a defendant is allowed to call a prosecutor deranged or a thug,” Chutkan said Monday. “No other defendant would be allowed to do it, and I’m not going to allow it in this case.”
Of course, Trump isn’t any other defendant; he’s a candidate for president who is entitled to some latitude in making his case, such as it is, to voters. But neither the 1st Amendment nor Trump’s status as a candidate gives him a license to intimidate witnesses or bully court personnel. The possibility that his rants might poison the jury pool is also a legitimate concern, though it can be addressed in other ways, such as careful questioning of prospective jurors.
Chutkan wouldn’t have had to balance Trump’s free-speech rights and the integrity of the judicial system if Trump had kept a civil tongue in his head and refrained from making outrageous accusations. But then he wouldn’t have been Donald Trump.