Keeping track of former President Donald Trump’s legal developments is becoming difficult. Recently, Justice Arthur Engoron issued a gag order on Trump after he posted to social media, making crude insinuations about Engoron’s law clerk.
Now, Trump may be subjected to another gag order – in a different case – relating to alleged efforts to overturn the 2020 election. The new gag order would likely restrict what Trump can say about witnesses and about federal prosecutors overseeing the case.
“The decision for US district judge Tanya Chutkan at the hearing, scheduled for 10 am in Washington, comes with unique challenges given the potential for Trump to test the limits of a protective order or even flout it outright – opening the explosive sanctions question of whether to jail him in response,” The Guardian reported.
Judge Chutkan is considering arguments that Trump has spent months issuing prejudicial statements with the potential to intimidate people out of testifying or to taint the jury pool. The filings asking for a gag order cited Trump’s social media posts about his former Vice President Mike Pence and former chair of the Joint Chief of Staff General Mark Milley.
For example, Trump’s post about Milley and his move to insulate the Department of Defense at the end of the Trump administration has been oft-cited: “In times gone by,” Trump wrote, “the punishment would have been DEATH! A war between China and the United States could have been the result of this treasonous act. To be continued!”
The Gag Order on Donald Trump
“The proposed gag order drafted by prosecutors in the office of the special counsel, Jack Smith, would limit Trump and his lawyers from making public statements about the identity or testimony of prospective witnesses, and allow Trump to say only he denied the charges ‘without further comment,’” The Guardian reported.
Trump’s legal team is not impressed with the gag request, arguing that the idea that Trump’s social media posts could intimidate high-level public officials is “absurd” and that issuing the gag order would be an “infringement on Trump’s First Amendment rights.” Trump’s legal team has a solid argument. Gagging a former president, in the midst of an ongoing presidential bid, would be unprecedented.
“There is little precedent for how Judge Chutkan should approach the issue of a gag order,” The Guardian reported, “balancing the strong constitutional protections for political speech in a case that could affect the outcome of the presidential election against ensuring the proper administration of the judicial process.”
Personally, I’m more concerned with the preservation of the definition of constitutionally protected free speech than with the hypothetical streamlining of a judicial process. Prohibiting a former (and potentially future) president from making political speech is a premise that concerns all of us, whether we support Trump or not. And sure, I understand the argument that a defendant can’t be threatening witnesses online, et cetera.
But I’m just not compelled that Trump has dissuaded any testimony, or that he has acted in a way that should result in the restriction of his constitutional rights. In fact, issuing a gag order would lend credibility to Trump’s persistent claims that the justice system is two-tiered and that he is the victim of a political witch hunt. Gagging Trump would likely be more dangerous than letting him continue to speak.
Harrison Kass is the Senior Editor and opinion writer at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, Harrison joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. Harrison listens to Dokken.