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Last week, a federal judge imposed a gag order on President Trump, barring him from discussing aspects of the case accusing him of illegally interfering in the 2020 election. A few days later, that same judge agreed to grant Trump a temporary reprieve while she considers an appeal filed by his lawyers arguing that the restrictions violate his right to free speech.
If Judge Tanya Chutkan’s limited order does go into effect, Trump will not be allowed to publicly attack specific people involved in the case, including special counsel Jack Smith, members of the court staff and witnesses who may testify against him. He would still be free to criticize the judge herself, accuse the Department of Justice of targeting him for political reasons and freely campaign for the presidency — as long as he steers clear of discussing former Vice President Mike Pence’s role the failed attempt to overturn the election.
Trump, who is facing numerous felony charges across four separate criminal cases as well as a pair of civil trials, has persistently railed against each of those cases while also targeting some of the individuals involved — including sharing a link that included the address of New York Attorney General Letitia James.
With the restrictions in the D.C. case on hold, Trump is only currently under a gag order in one case, a civil fraud trial based in New York. The judge in that case has fined him twice for a total of $15,000 for violating the order.
“Defendant’s presidential candidacy cannot excuse statements that would otherwise intolerably jeopardize these proceedings.”D.C. District Court Judge Tanya Chutkan
Why there’s debate
Judges frequently use gag orders to stop people from making statements that could intimidate witnesses or influence jurors — using the threat of sanctions, fines and even jail time to keep them in line. Trump is no ordinary defendant, though, which raises questions about whether it’s wise or even legal to restrict what he’s allowed to say.
In her order, Chutkan wrote that running for president does not give Trump the freedom to say things that a typical defendant would be barred from saying. In fact, she argued that Trump’s massive following means his statements carry far more weight and can pose an “significant and immediate risk” to the targets of his attacks.
Trump’s defenders say a gag order would violate his First Amendment rights while also unfairly restricting his ability to make the case for his innocence to the American people in his presidential campaign. Even some of the former president’s biggest critics say limiting his speech gives him grounds to claim that he’s being persecuted by his political enemies.
There is also serious doubt on both sides of the debate over whether any gag order can carry enough weight to actually change Trump’s behavior, especially if judges are only willing to issue small fines and not take the extraordinary step of imprisoning him if he flagrantly violates it.
Chutkan could decide to reinstate her gag order on Trump at any time, but may opt to leave the pause in place until she has the opportunity to fully consider his lawyers’ appeal. It’s unclear at the moment whether any of the judges overseeing the other cases against him will also try to restrict his speech.
Running a campaign is not a free pass
“Trump is running for president, true. But that doesn’t give him the freedom to say whatever the hell he wants about people involved in the multiple criminal cases in which he faces 91 state and federal felony charges. ... I’m not above the law, you’re not above the law and Trump, sad as it may be for him to learn, is not above the law.” — Rex Huppke, USA Today
A gag order violates Trump’s free speech rights
“Although I often wish that Donald Trump would shut up, he has a constitutional right not to.” — Erwin Chemerinsky, Los Angeles Times
Trump’s attacks create real-life danger for the people he targets
“The day is fast approaching when someone picks up a gun or builds a bomb and then seeks to follow through on Mr. Trump’s words.” — Jeffrey Toobin, New York Times
Rules for normal defendants shouldn’t apply to someone in his unique position
“To limit what he says about the case necessarily involves drawing arbitrary lines regarding what a political figure can say about a politically relevant matter. No judge should go there, even if Trump’s statements are, true to form, careless, stupid, and incendiary.” — Editorial, National Review
Every restriction gives Trump more fuel for his reelection bid
“Our guess is that Mr. Trump welcomes the gag order, notwithstanding his protests. It fuels his main campaign theme that Republicans should vote for him because he is a martyr for them.” — Editorial, Wall Street Journal
The order is meaningless unless judges have the guts to enforce it
“They could put Trump under house arrest or — as fantastic as it might seem — even jail him in the middle of a presidential campaign if he goes absolutely wild. Which he will. … The petulant child always disobeys. The petulant child always escalates. This petulant child will call the judges’ bluffs. Will they call his?” — Jack Shafer, Politico
Trump is still getting special treatment no other defendant enjoys
“The judicial system’s casual treatment of Trump’s unending threats, harassment and intimidation of witnesses is as perplexing as it is alarming. ... From the moment Trump was criminally indicted, he has been endangering witnesses with impunity.” — Glenn Kirschner, MSNBC
There is no legal road map for a gag order on someone like Trump
“A reactionary Supreme Court majority lurks in the background. They might well relish issuing a high-minded opinion waxing poetic on First Amendment principles that they will apply (or misapply) in favor of the leading Republican candidate for president. At the same time, in recent cases, the justices have seemed to be fed up with Trump’s petitions for special treatment.” — Dennis Aftergut and Frederick Baron, Slate