Tuesday Talk*: Gagging A Candidate Or Criminal Defendant

There are two basic rationales for imposing a gag order on a criminal defendant, to prevent him from intimidating witnesses against him and to preserve the integrity of the proceedings by preventing improper influence of the jury pool. But then, rarely is a criminal defendant a  serious candidate for public office. What’s a judge to do?

“They put a gag order on me, and I’m not supposed to be talking about things that bad people do, and so we’ll be appealing very quickly,” Mr. Trump said on Monday at a campaign stop in Iowa. He added, “I’ll be the only politician in history where I won’t be allowed to criticize people.”

Granted, this is a nonsensical characterization of the second gag order imposed by Judge Tanya Chutkan, but then Trump’s strength has never been factual accuracy.

A judge imposed a limited gag order on former President Donald J. Trump on Monday, restricting Mr. Trump from making public statements attacking the witnesses and specific prosecutors or court staff members involved in the federal case concerning his efforts to overturn the 2020 election.

Mr. Trump’s free speech rights do not permit him “to launch a pretrial smear campaign” against those people, said the judge, Tanya S. Chutkan.

“No other defendant would be allowed to do so,” Judge Chutkan added, “and I’m not going to allow it in this case.”

By “those people,” Judge Chutkan speaks of the prosecutors and witnesses in the case against Trump. Not covered by the order were Biden, the Justice Department in general and, more or less, the judge herself.

She repeatedly said that Mr. Trump should not enjoy any special privileges as a presidential candidate. She added that she was simply seeking to protect people involved in the election interference case from being threatened, and to keep Mr. Trump’s bullying remarks from spiraling into violence.

“This trial will not yield to the election cycle,” Judge Chutkan said.

Is it fair commentary for Trump to call the special prosecutor, Jack Smith, “deranged” at every opportunity? What if the concern isn’t that Trump is saying mean things about him, but that a certain cohort of Trump supporters believes he is calling upon them to engage in violence to save Trump from this “deranged” person? It’s not as if death threats aren’t already happening, or that cohort of Trump supporters hasn’t already demonstrated its inclination to engage in violence.

But like it or not, Trump remains the leading candidate for the Republican nominee for the presidency. His multiple prosecutions are very much a significant factor in his candidacy, and as a candidate, addressing their merit and motivation is hardly unreasonable, even if a more competent candidate would do so in less outrageous and hyperbolic language.

Mr. Lauro, often using exaggerated language, sought to portray Mr. Trump as the victim of the government’s “tyranny” and “totalitarianism.” He tried to reframe the former president’s public statements, saying they were merely examples of “speaking truth against oppression,” and he baselessly portrayed President Biden as having directed the case against Mr. Trump.

At one point, the tensions nearly boiled over as Judge Chutkan noted that Mr. Lauro was speaking as much to his client, Mr. Trump, as he was to her, and warned him to “tone this down a bit.” Mr. Lauro responded by accusing the judge of trying to censor his own speech.

Seizing upon the rhetoric of victimhood, speaking truth to power, may seem laughable to some, but all candidates for office spin arguments in whichever direction serves their interest. While Trump’s attorney, John Lauro, certainly knows that it’s Judge Chutkan who will be making the decision, and that his choice of hyperbolic argumentation was facially counterproductive as far as persuading Judge Chutkan, even the defense arguments in the case are very much a part of Trump’s candidacy pitch. While the court may not yield to the election cycle, the election cycle won’t yield to the court either.

We are in uncharted waters here, with a presidential candidate being prosecuted while simultaneously campaigning for office. Sure, Trump’s rhetoric is vicious, outrageous and ignorant, but that’s his brand and his supporters love it. Is he supposed to campaign but not be him? Where is the line to be drawn? Can a line be drawn?

While Judge Chutkan’s gag order is very limited, narrowly tailored to meet the constraints of preserving the appropriate purposes of a criminal prosecution, those purpose are in direct conflict with the ability of a candidate to hit the road and express his bile against all enemies, foreign and domestic. Can any gag order on a presidential candidate not unconstitutionally restrict his right to be as vile as he wants to be?

*Tuesday Talk rules apply, within reason.

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