Judge Tanya Chutkan’s gag order on former President Donald Trump has conjured a storm of fierce political and legal debate while raising critical questions about the future of America’s electoral process.
The ultimate impact of her order remains to be seen, but she appears to have broken new ground in regulating how presidential contenders can address widely publicized legal challenges that are likely to serve integral parts of both contenders’ and their opponents’ campaigning.
While she said President Trump could continue broadly criticizing the administration and Washington, she sought to limit his ability to criticize court personnel, special counsel Jack Smith’s team, and potential witnesses.
Issued on Oct. 17, the text of Judge Chutkan’s ruling reiterates her concern about President Trump provoking harassment of key figures involved in the case.
“Undisputed testimony cited by the government demonstrates that when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed,” she wrote.
“Since his indictment, and even after the government filed the instant motion, Defendant has continued to make similar statements attacking individuals involved in the judicial process, including potential witnesses, prosecutors, and court staff. … Defendant has made those statements to national audiences using language communicating not merely that he believes the process to be illegitimate, but also that particular individuals involved in it are liars, or ‘thugs,’ or deserve death. …
“The court finds that such statements pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.”
The order itself, however, is relatively unspecific about enforcement and at whom exactly President Trump is able to direct his criticisms.
It reads: “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.”
Judge Chutkan indicated on Oct. 16 that her order was intended to prevent President Trump from conducting a “pre-trial smear campaign” and spoiling the integrity of the trial.
Will Trump Get a Fair Shot to Defend Himself in the 2024 Election?
With roughly a year till the 2024 election, President Trump has proven to be a formidable force for his political foes. Despite being censored on social media platforms and facing intense criticism from even those within his own party, the 45th president has consistently dominated polling among Republican presidential candidates. Some polling has shown him beating President Biden in a 2024 match-up even as he faces multiple indictments and possible jail time.
Yet other polling indicates support for the Biden administration’s prosecution. Combined with historical voting trends and the usual unpredictability of election cycles, those polls point to 2024 being yet another close contest that could be decided along slim and unstable margins.
The order by Judge Chutkan, who was appointed by President Barack Obama, prompted widespread accusations that Democrats were committing a form of election interference.
“The politicized prosecution is designed to derail his ability to win re-election and when the judge silences him in his ability to defend himself publicly, then she is doing the work of his political enemies for them,” said Roger Severino, who serves as vice president of domestic policy at The Heritage Foundation. Mr. Severino led the Health and Human Services Department’s Office of Civil Rights under President Trump and previously served as a trial attorney at the Department of Justice (DOJ).
“We used to not live in a banana republic where [the] DOJ was weaponized and politicized,” he said. “It has been weaponized and politicized, so now it needs to be restored, and that’s part of his campaign, and now he has to look over his shoulder because the judge is going to be watching every word he says on that issue. … Everything she is doing in this order will have an impact on the campaign—from his fundraising to his political speech.”
Democratic elections are often touted for purportedly including free and robust debate over critical issues, but that could be in jeopardy as President Trump faces several indictments and, as Judge Chutkan noted, criminal defendants don’t typically enjoy unfettered rights to free speech.
Trump attorney John Lauro, who said the case was inescapably political, argued on Oct. 16 that the DOJ’s gag order request presented the possibility of an “asymmetrical” environment in which his client wouldn’t have an equal opportunity to counter attacks from President Biden and others.
Before Judge Chutkan’s order, President Trump received intense criticism from leading Democrats and media figures accusing him of feeding an insurrection and attempting to undermine the foundations of the U.S. government.
Some of the criticism has come from potential witnesses such as former Vice President Mike Pence, whom President Trump reportedly pressured not to certify the election results in the 2020 election. While Mr. Pence has been seemingly hesitant to accuse his former boss of criminal activity, he has publicly criticized his conduct on that day.
Another potential witness is retired Gen. Mark Milley, who served in the Trump administration and made comments that media outlets interpreted as describing the former president as a “wannabe dictator.”
DOJ prosecutor Molly Gaston maintained that her proposed order wouldn’t prevent President Trump from proclaiming his innocence or campaigning for president. She suggested, however, that he should stick with in-court motions, such as one alleging selective and vindictive prosecution, if he wanted to accuse the administration of corrupt and politicized action in the case. Judge Chutkan, by contrast, said that the former president could generally describe the prosecution as politically motivated but should avoid targeted attacks on individuals and their families.
It’s unclear, though, how much leeway President Trump will have in ascribing political motivations to Mr. Smith and his team. Judge Chutkan’s broad language also leaves questions about how the former president can respond to attacks such as Gen. Milley’s. On Oct. 16, she said that President Trump could criticize Mr. Pence’s policies but not target him with speech related to events underlying the ongoing case in her court.
Mr. Severino argued that Judge Chutkan’s order failed to properly balance constitutional rights with interests in administering justice. Were President Trump proving to be a disruptive force within the courtroom, Severino indicated, Judge Chutkan may be standing on firmer ground.
In responding to the DOJ’s proposed order, Mr. Lauro wrote: “The prosecution does not point to a single prosecutorial or judicial function that has been impaired due to the cited social media posts, or otherwise suggest that it would be unable to fulfill its duties absent the Proposed Gag Order.
“Every hearing in this case has gone forward on schedule, without incident, and there is zero reason to believe that will change due to President Trump’s political expressions.”
Judge Chutkan pointed to President Trump’s actions in his New York case as evidence that he had gone too far in responding to legal battles. She said she was “deeply disturbed” by the former president posting a photo of a law clerk, whom he suggested was Senate Majority Leader Chuck Schumer’s (D-N.Y.) girlfriend.
Mr. Lauro and Judge Chutkan clashed over Trump’s rhetoric many times but especially when she criticized the former president’s reference to special counsel Jack Smith’s wife, Katy Chevigny. President Trump described Ms. Chevigny, who donated to President Biden’s 2020 campaign and produced a documentary about former First Lady Michelle Obama, as his “hater.” Judge Chutkan’s order seems designed to preclude those types of comments by the former president.
It’s also unclear what exactly President Trump can’t say, if anything, about Mr. Smith, whom Mr. Lauro called out on Oct. 16 for announcing the indictment with rhetoric that he alleged was intended to prejudice the jury pool. Mr. Smith’s statements are some of the many to which Mr. Lauro thinks President Trump should be able to respond. Mr. Smith notably accused the former president of lies “targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting, and certifying the results of the presidential election.”
Will Chutkan’s Order Survive Additional Legal Scrutiny?
President Trump’s attorneys have already filed notice of their intention to appeal the judge’s decision and indicated a reluctance to abide by her order. Speaking after the Oct. 16 hearing, the former president said he believed that Judge Chutkan’s order was “totally unconstitutional.”
“The judge doesn’t like me too much,” President Trump said. “Her whole life is not liking me. … This is weaponry all being done because Joe Biden is losing the election and losing very, very badly.”
In another Iowa event, he said that “they’ve weaponized the Justice Department.”
“This is like a banana republic. But it’s going to be OK,” he said.
Judge Chutkan said on Oct. 16 that she would consider “sanctions” in response to President Trump’s potential violations of her order—raising questions about how much of a chilling effect it will have on campaign rhetoric.
In a statement provided to The Epoch Times, Landmark Legal Foundation Vice President of Legal Affairs Michael O’Neill said: “While limitations placed on President Trump’s right to criticize potential witnesses and court staff may be proper, gagging Mr. Trump’s statements regarding special counsel Jack Smith is a bridge too far. Undoubtedly, Mr. Smith’s prosecution is politically motivated, and he is fair game for any rhetorical grenades lobbed his way.
“This is a unique case with national implications, and it is incumbent upon the Court of Appeals for the D.C. Circuit (and possibly the U.S. Supreme Court) to determine whether Judge Chutkan’s order violates Trump’s constitutional right to free speech.”
If President Trump’s appeal advances, his legal team could face another judge appointed by President Obama—something President Trump cited while alleging he couldn’t get a fair trial from the current judge.
Mr. Severino noted that there are many Obama appointees in the District of Columbia Circuit.
“So given the political makeup of the D.C. circuit, it’s dicey as to whether you prevail there,” he told The Epoch Times.
President Trump could also appeal the case to the Supreme Court, which currently has a 6–3 conservative majority, including three justices whom he himself nominated while in office.
“The Supreme Court’s a different matter,” Mr. Severino said, noting that the court has “been very, very skeptical of hostile prosecutions of politicians.” He pointed to the Court tossing a corruption conviction against former Republican Virginia Gov. Bob McDonnell, who was also prosecuted by Mr. Smith.
President Trump’s case is unique, according to observers, due to both his unorthodox communication style and the circumstances of his case. Existing precedents don’t pertain to a former president running for office against his former and likely future opponent, who’s also prosecuting him for allegedly attempting to illegally overturn the results of their previous contest.
Barbara McQuade, a former U.S. attorney and University of Michigan Law School professor, said before Judge Chutkan’s order that she had a responsibility to act and could survive legal challenges with a narrow order.
“Especially in this case, where Donald Trump has made it apparent that he will say all kinds of outrageous and vitriolic things about the parties, about the judge, about witnesses unless she acts,” she said, according to The Associated Press.
Cato Institute Vice President of Legal Studies Clark Neily, who doubted that an appeal by President Trump would succeed, similarly said the Republican deserved less benefit of the doubt compared to other defendants.
“Donald Trump is to some extent a unique criminal defendant, both in terms of his ability to influence the proceeding itself and expose participants—including but not limited to witnesses, prosecutors, and court staff—to real harm, as well as the unremitting bad faith he has shown towards the entire process, not just in this case but in others as well,” Mr. Neily told The Epoch Times.
“Trump has shown himself to be particularly likely to abuse his free-speech rights, particularly likely to disregard judicial instructions short of a gag order, and particularly inclined to pervert the entire process to his own advantage however he can.
“Of course, that doesn’t justify silencing him entirely or entering an overbroad gag order that sweeps more broadly than strictly necessary to prevent Trump from undermining the proceeding or threatening the safety or efficacy of the participants; but it may well mean that judges will be less inclined to give Trump the benefit of the doubt than they might to other defendants. Properly so, in my judgment, given his unapologetic bad faith throughout.”
While commentators and attorneys hold conflicting views on the nature of both President Trump’s and Judge Chutkan’s actions, both sides have portrayed the ongoing trial as detrimental to American democracy and the freedoms that it protects.
“George Orwell would have a field day with what we’re hearing from these prosecutors,” Mr. Lauro said during the Oct. 16 hearing.
Judge Chutkan, apparently invoking the dystopian author for different reasons, responded: “George Orwell would definitely have a field day.”