The only problem with your thought experiment is this: we may extend the courtesy of narrowing trumps gag order to exclude political speech, another Trump administration that includes Miller and Stefanik, would not, and would have no problem with the optics of a total gag on Sec. Butiegeig. In fact, they would revoke his pre-trial freedoms. Trust people when they tell you who they are.
I understand that risk. But from a legal standpoint, the question now is whether the Supreme Court would open the door to a complete gag order by ruling in favor of the prosecution now, only to have it become something used as a cudgel later.
The issue I have with the question of lifting the gag order--even in your thought experiment--is that elements of the case must remain within the confines of the court proceedings. TFG can currently spout ludicrous attacks on witnesses and court staff under the guise of "free speech", but the witnesses and staff aren't afforded their right to cross-examine or otherwise defend themselves. I also fail to see how "Gen Milley should be shot" or "the court clerk is Sen Schumer's girlfriend" are considered "political speech".
It is beyond me that a prosecutor in the DOJ is considered a “public official” who can withstand the threats, taunts, etc. First, Jack Smith was NOT a publicly known official until Trump made him one. So, does this now extend to Judge Engoron’s clerk because she has been in the news? And, also because anyone can be affected by hate speech when their family’s lives are at stake. Just because there has never been anyone as brazen and depraved as Trump shouldn’t mean public employees have to endure that behavior. Even if Trump is not elected, who will choose to work in such a dangerous position? If we are to resist these autocratic policies in the future, we need to put a stop to them now.
True. And the real issue here is not whether Jack Smith is tough enough to be unruffled by Trump’s invective. It’s whether Trump’s vile remarks raise the threat level to Smith or others from Trump’s followers.
Instigating attacks against the families of those prosecuting TFG are my major concern. In my view, those attacks have nothing to do with political speech, and absolutely violate the term of his release agreement.
Trump wrote in 2022 on social media that "termination of all rules, regulations and articles, even those found in the Constitution" is justified in response to 'fraudulent elections.'
Let's not have any illusion: his first step in 2025 would be 'suspending' the Constitution on 'energency' pretense and removing all restraint on his power. There won't be an election or an opposition party after that.
The issue I have with your shoe on the other foot scenario is, the Democratic base hasn't shown itself to use violence and insurrection as tools for our outrage.. Yes, there are some, but the majority of the base isn't violent or brainwashed. If we were, our chance to do that was in 2016. Also, professionals like Jack Smith might have a thick skin, but a thick skin doesn't stop a bullet from a maga cult member.
Yes, this. Exactly what was on my mind. Legislators all over the country are bowing under the threat of violence by MAGAts and tRump is their ring leader. I do hope they send a stern message.
I read Thom’s piece on that. Nixon and Reagan are traitors, especially Reagan. It doesn’t go over well in our house or that of some of my in-laws. My wife’s cousin was one of the hostages and a good friend from high school was on the last plane out of Iran with Americans on board. She’d been visiting her parents that were doing missionary work. Talk about a small world.
I cannot get over my anger at that admin for all the deaths and maiming for putrid lies. I can’t print what I used to imagine when that Texas clown showed up on the news. We’ve descended into hell by a thousand cuts, a slippery slide.
You've provided a roadmap for tRump's team to keep pushing appeals at the same time motioning for stays in order to maintain the fetid stream of abuse and invective despite attempts to control him. How are judges not persuaded to impose limitations on tRump by reading over the innumerable amount of filth dished up on tRump's SM site? How can there NOT be a case for incitement to violence when a cursory look at some of his recent "campaign" speeches and SM posts present factually facial evidence of just that?
"Bending over backwards" hardly explains how the courts are handling this demonic presence, they are carving out a doctrine of "tRump exceptionalism" to allow conduct to which ordinary Americans would have long ago felt the sting of justice, and giving the lie to the old wheeze about "nobody is above the law"...clearly there is one of us who is just that, QED.
They are certainly grappling with something they’ve never had to before—a criminal defendant who wants to test the limits of the federal courts and actually wants them to gag him and punish him so that he can play victim. It’s really a tough line to walk for the courts.
Good lord, this needs some sort of trigger warning! I cannot imagine a more dystopian hellscape than the one you just painted. Steven King got nuthin on you!
The problem with your view is that no one in trump 2.0 would be playing by the rules, and "Judge" Cannon would have no problem throwing Buttigieg in jail for any violations. The republicans have been tossing rules they don't like for years now; so often in fact people don't notice it anymore. I know we all want the rule of law to be there when we need it, but I don't think following the law is what these fascist have in mind.
P.S. I want you to be right Jay, I really do. I have a 15 year old son that wants to be an astrophysicist, and I want this country to still be a democracy when he goes to college.
Thank you for your help understanding this complex issue. Your legal expertise and easily understandable (no matter HOW disturbing the thought was) analogy was perfect!
This is what keeps me up at night. This is my daytime nightmare. Another thing I worry about is if He is reelected all Hell will break lose and all of our safeguards disappear. And yes I will vote like my life depends upon it,
My feeling is that if Trump becomes president again, we won't have a court or legislature. He will have no use for them anymore and will just get rid of them.
Oh, we will have them - after all, Hitler did. They are useful rubber-stamps to legitimize their crimes. It ain't a crime if the law says you can do it, and Hitler wasn't a criminal - in Germany. His Reichstag passed laws to allow him to do what he did.
“How far can a judge restrict the speech of a criminal defendant who is also a leading political candidate for office”
Why is that even a question? That a defendant is running for political office should have no more relevance than any other activity a defendant may be engaged in.
“Oh, we can’t restrict this defendant’s public statements like we would other defendants because this one works as an accountant!” Silly, right?
Politicians are perfectly capable of running for office effectively without threatening or slandering anyone. All they have to do is tell people why they should vote for them.
True, Trump is incapable of listing any positive qualities or legitimate reasons to vote for him. But that’s not the court’s problem to solve.
(The courts’ problem is they are hypocrites and cowards unwilling to apply to law equally to all and afraid to stand up to Trump and treat him like every other defendant.)
Thank you! Bravo! I am sick to death of this double standard. And, most likely, as these seemingly endless appeals continue, the gag order will probably be suspended so this sociopath with a damaged frontal lobe can keep saying and writing things that incite people to violence, until something really awful happens. And then it will be too late.
There has to be a difference between free speech of political ideas without allowing ad hominem attacks on people especially by people who hold power over others. It shouldn’t be that freaking hard. Some people just want to make it confusing so they can continue to create fear and hate. In 2023 in the US of A where we have documents like the Constitution and great scholars of history and our laws I don’t understand why we the people don’t demand that we figure this out and get it right.
For folks who didn’t yet see this on Jessica Craven’s Sunday letter, I highly recommend. He’s not confused by all the rhetoric. God Bless!
The only problem with your thought experiment is this: we may extend the courtesy of narrowing trumps gag order to exclude political speech, another Trump administration that includes Miller and Stefanik, would not, and would have no problem with the optics of a total gag on Sec. Butiegeig. In fact, they would revoke his pre-trial freedoms. Trust people when they tell you who they are.
I understand that risk. But from a legal standpoint, the question now is whether the Supreme Court would open the door to a complete gag order by ruling in favor of the prosecution now, only to have it become something used as a cudgel later.
Or, TFG’s SS officers would have him disappear.
Butiegeig would be imprisoned for an entirely different reason: homosexuality.
The issue I have with the question of lifting the gag order--even in your thought experiment--is that elements of the case must remain within the confines of the court proceedings. TFG can currently spout ludicrous attacks on witnesses and court staff under the guise of "free speech", but the witnesses and staff aren't afforded their right to cross-examine or otherwise defend themselves. I also fail to see how "Gen Milley should be shot" or "the court clerk is Sen Schumer's girlfriend" are considered "political speech".
The line certainly needs to be drawn such that the order stays in place to protect witnesses and court staff from intimidation, agreed.
Great points. Thanks.
Oh that was painful to read. But thank you for thinking it through for us Jay.
Right? Talk about the stuff of nightmares.
Ditto
I was clenching my teeth while reading this. May this scenario never come to pass
It is beyond me that a prosecutor in the DOJ is considered a “public official” who can withstand the threats, taunts, etc. First, Jack Smith was NOT a publicly known official until Trump made him one. So, does this now extend to Judge Engoron’s clerk because she has been in the news? And, also because anyone can be affected by hate speech when their family’s lives are at stake. Just because there has never been anyone as brazen and depraved as Trump shouldn’t mean public employees have to endure that behavior. Even if Trump is not elected, who will choose to work in such a dangerous position? If we are to resist these autocratic policies in the future, we need to put a stop to them now.
True. And the real issue here is not whether Jack Smith is tough enough to be unruffled by Trump’s invective. It’s whether Trump’s vile remarks raise the threat level to Smith or others from Trump’s followers.
I tend to agree about Jack Smith but the traitor also attacks his family members. Who does that? They have nothing to do with the case.
Instigating attacks against the families of those prosecuting TFG are my major concern. In my view, those attacks have nothing to do with political speech, and absolutely violate the term of his release agreement.
DT never plays fair. He has no moral compass.
Trump wrote in 2022 on social media that "termination of all rules, regulations and articles, even those found in the Constitution" is justified in response to 'fraudulent elections.'
Let's not have any illusion: his first step in 2025 would be 'suspending' the Constitution on 'energency' pretense and removing all restraint on his power. There won't be an election or an opposition party after that.
This is certainly a valid fear.
Yup exactly
The issue I have with your shoe on the other foot scenario is, the Democratic base hasn't shown itself to use violence and insurrection as tools for our outrage.. Yes, there are some, but the majority of the base isn't violent or brainwashed. If we were, our chance to do that was in 2016. Also, professionals like Jack Smith might have a thick skin, but a thick skin doesn't stop a bullet from a maga cult member.
Yes, this. Exactly what was on my mind. Legislators all over the country are bowing under the threat of violence by MAGAts and tRump is their ring leader. I do hope they send a stern message.
In an effort to protect trump’s “political speech“ they’re going to wait until something terrible happens, and then it will be too late.
The majority of MAGA adherents are also not violent. The minority who is, is likely much more dangerous.
They do love their AR-15s.
In Trump's case, I wish a gag order actually meant he had to wear a gag. Because if I NEVER hear his voice again - it honestly can't be too soon.
When watching news, I have to have my finger on the mute button for instant silencing. It is that bad!
I’ve been doing that since Shrub (aka Bush Jr., George II) became America’s first illegitimate president.
And some smart folks make a good case for GW not being the first in that group!
https://hartmannreport.com/p/four-presidents
I read Thom’s piece on that. Nixon and Reagan are traitors, especially Reagan. It doesn’t go over well in our house or that of some of my in-laws. My wife’s cousin was one of the hostages and a good friend from high school was on the last plane out of Iran with Americans on board. She’d been visiting her parents that were doing missionary work. Talk about a small world.
I cannot get over my anger at that admin for all the deaths and maiming for putrid lies. I can’t print what I used to imagine when that Texas clown showed up on the news. We’ve descended into hell by a thousand cuts, a slippery slide.
Ditto
Amen
You've provided a roadmap for tRump's team to keep pushing appeals at the same time motioning for stays in order to maintain the fetid stream of abuse and invective despite attempts to control him. How are judges not persuaded to impose limitations on tRump by reading over the innumerable amount of filth dished up on tRump's SM site? How can there NOT be a case for incitement to violence when a cursory look at some of his recent "campaign" speeches and SM posts present factually facial evidence of just that?
"Bending over backwards" hardly explains how the courts are handling this demonic presence, they are carving out a doctrine of "tRump exceptionalism" to allow conduct to which ordinary Americans would have long ago felt the sting of justice, and giving the lie to the old wheeze about "nobody is above the law"...clearly there is one of us who is just that, QED.
They are certainly grappling with something they’ve never had to before—a criminal defendant who wants to test the limits of the federal courts and actually wants them to gag him and punish him so that he can play victim. It’s really a tough line to walk for the courts.
Good lord, this needs some sort of trigger warning! I cannot imagine a more dystopian hellscape than the one you just painted. Steven King got nuthin on you!
Really appreciate your work. Definitely clarifies the issues.
The problem with your view is that no one in trump 2.0 would be playing by the rules, and "Judge" Cannon would have no problem throwing Buttigieg in jail for any violations. The republicans have been tossing rules they don't like for years now; so often in fact people don't notice it anymore. I know we all want the rule of law to be there when we need it, but I don't think following the law is what these fascist have in mind.
P.S. I want you to be right Jay, I really do. I have a 15 year old son that wants to be an astrophysicist, and I want this country to still be a democracy when he goes to college.
Thank you for your help understanding this complex issue. Your legal expertise and easily understandable (no matter HOW disturbing the thought was) analogy was perfect!
This is what keeps me up at night. This is my daytime nightmare. Another thing I worry about is if He is reelected all Hell will break lose and all of our safeguards disappear. And yes I will vote like my life depends upon it,
You’ve scared me. Thanks.
My feeling is that if Trump becomes president again, we won't have a court or legislature. He will have no use for them anymore and will just get rid of them.
Oh, we will have them - after all, Hitler did. They are useful rubber-stamps to legitimize their crimes. It ain't a crime if the law says you can do it, and Hitler wasn't a criminal - in Germany. His Reichstag passed laws to allow him to do what he did.
“How far can a judge restrict the speech of a criminal defendant who is also a leading political candidate for office”
Why is that even a question? That a defendant is running for political office should have no more relevance than any other activity a defendant may be engaged in.
“Oh, we can’t restrict this defendant’s public statements like we would other defendants because this one works as an accountant!” Silly, right?
Politicians are perfectly capable of running for office effectively without threatening or slandering anyone. All they have to do is tell people why they should vote for them.
True, Trump is incapable of listing any positive qualities or legitimate reasons to vote for him. But that’s not the court’s problem to solve.
(The courts’ problem is they are hypocrites and cowards unwilling to apply to law equally to all and afraid to stand up to Trump and treat him like every other defendant.)
Thank you! Bravo! I am sick to death of this double standard. And, most likely, as these seemingly endless appeals continue, the gag order will probably be suspended so this sociopath with a damaged frontal lobe can keep saying and writing things that incite people to violence, until something really awful happens. And then it will be too late.
There has to be a difference between free speech of political ideas without allowing ad hominem attacks on people especially by people who hold power over others. It shouldn’t be that freaking hard. Some people just want to make it confusing so they can continue to create fear and hate. In 2023 in the US of A where we have documents like the Constitution and great scholars of history and our laws I don’t understand why we the people don’t demand that we figure this out and get it right.
For folks who didn’t yet see this on Jessica Craven’s Sunday letter, I highly recommend. He’s not confused by all the rhetoric. God Bless!
https://youtu.be/scbyNdHneco