Taming the Online Terrorist

Artist’s rendering of a Protective Order hearing before Judge Chutkan in Trump’s D.C. case, courtesy of CNN

In a much anticipated ruling from the bench, Judge Tanya Chutkin placed a limited gag order (her words) upon former president Donald Trump in connection with his federal criminal case in D.C. The order bars Trump from attacking witnesses, court staff, specific prosecutors and their families.

It is a nuanced order that still leaves Trump free to engage in political campaigning, using his First Amendment right to attack the fairness or politics of the proceedings. But it draws a line when it comes to attacking most witnesses and court and Justice Department officials who work on the case.

Trump spoke out last night directly about the gag order during a rally in Iowa, in the process taking a personal swipe at the judge and mischaracterizing the scope of the order.

A judge gave a gag order today, did you hear that? On speech. Which I believe is totally unconstitutional, what she did. A judge gave a gag order, a judge doesn’t like me too much, her whole life is not liking me. But, uh, she gave a gag order. You know what a gag order is? You can’t speak badly about your opponent. But this is weaponry all being done because Joe Biden is losing the election and losing very, very badly to all of us.

The Trump Campaign blasted the gag order in an official statement, calling it “an absolute abomination and another partisan knife stuck in the heart of our Democracy.” Said a campaign spokesperson, “President Trump will continue to fight for our Constitution, the American people’s right to support him, and to keep our country free of the chains of weaponized and targeted law enforcement.”

The order of course, being quite limited in scope, is neither a blanket ban on his speech nor part of a partisan campaign. But it seems clear that Trump will try to use the existence of a gag order (now the second one placed on him) to portray his case as about his free speech rights and, of course, to raise money. 

Indeed, a fundraising email went out immediately following the order, falsely stating that it was put in place “at the request of Joe Biden.” 

Given the misinformation campaign already launched by Trump around the gag order, and the high likelihood that he will violate it in the not distant future, it’s important to understand how Judge Chutkan crafted the order, what her basis for it is, and what the she has said about mechanisms to enforce it.

Before we dive into this, an important side note. When I posted the news that the Justice Department had won on the question of a Protective Order limiting Trump’s statements about witnesses, court officials, and certain prosecutors and their families, I saw a considerable amount of cynicism and defeatism in response: “It won’t matter,” “He’s going to violate it anyway,” “She should have done this a long time ago.” I will try to answer these points today, but as an initial matter I want to caution us to not leap to the negative when something actually good happens.

I saw this when the first indictments of Trump came down. “Wake me up when he’s convicted” was a common response. “He’ll never go to prison” was another. “The system never punishes the powerful and rich” was a third. While these responses are understandable, they are unhelpful, intellectually weak, and counterfactual. As I have often said here, accountability is a process, and without an indictment first happening, there is no chance of being convicted; without a conviction there is no chance of him going to prison; and without prison time there is no evidence that the rich and powerful actually get punished. Closing our eyes to the process means a public tuning out, which is anathema and quite destructive to participatory democracy.

Same goes with the gag order. We cannot hope to rein Trump in without first setting some ground rules, consistent with our constitutional principles and cognizant of the unique nature of the cases and this defendant. That is what Judge Chutkan is attempting to do, and I do not envy her. Our energies are better spent understanding the reasoning behind the nuances of the order and how it could be enforced down the road, rather than disinterested shrugs and sighs that diminish the historic nature and crucial importance of the order.

I understand that folks are frustrated at the time it takes to hold someone like Trump accountable. It’s easy to forget that the good guys have been winning steadily ever since the first indictments came down in March, with Trump losing on key procedural motions, having his business licenses canceled, losing in jury and court verdicts to E. Jean Carroll, and having various trial dates set long before the election. It’s in fact hard to find one good piece of news for Trump out of all of this, except that he pulled a favorable judge in Miami, and even that likely won’t save him. 

But liberals and progressives are natural worriers, because we care about the state of our Republic and our democracy and they are both under unprecedented attack, so we are prone to taking very good news, like the entry of a gag order, and somehow making it bad. When I find myself doing this, I pause, remember all the progress, and get back to the actual facts, reason and logic of the process.

Okay, with that off my chest, let’s dive into the gag order, answering some of the most common questions.

Why was a gag order needed? Wasn’t the pre-trial agreement enough?

When Trump was arraigned, he agreed to certain limitations in exchange for not being detained pre-trial. These conditions included things like not speaking to witnesses and not breaking the law. Violation of these conditions could lead to revocation of his pre-trial release, and he could be remanded into custody. That’s a pretty drastic outcome.

But ever since then, Trump has been out railing against prosecutors, the judge and the Justice Department; disparaging and threatening witnesses; and tainting the jury pool by blasting D.C. and the judicial process publicly, mostly via his social media posts on Truth Social. Because of this, the prosecutors were forced to move for a protective order that would place a further restraint upon his attacks.

During the hearing, Judge Chutkan directly addressed the question of why the pre-trial agreement wasn’t enough here. Molly Gaston, who argued for the government, noted there were two sources of prejudicial statements that the government sought to prevent: 

1. Derogatory, inflammatory, and intimidating statements regarding witnesses, which are not covered by the pre-trial conditions but which risk affecting both the witnesses targeted and other witnesses who see the attack and could be chilled by them, and

2. A trial of the case in public, in which evidence is falsely presented and there are attacks on witness credibility outside of the courthouse.

This framing helps answer the question, “Why did it take so long for a judge to gag him?” Because the standard pre-trial agreement didn’t cover the kind of behavior in which Trump engaged—behavior that was quite unprecedented in the history of trials—the Department had to move for a more specific protective order.

After that, the defense had an opportunity to respond, and the government yet another opportunity to reply. All of that takes time. At stake are very serious questions of Trump’s First Amendment rights as a politician, weighed against the need to conduct the case without threats, interference or intimidation. 

The way to draw that line isn’t wholly settled in the law, by the way. In fact, as the New York Times noted, the Supreme Court has never addressed the question of a gag order upon a defendant, largely because defendants don’t usually speak publicly about their cases, let alone to millions of ardent supporters. 

As Supreme Court lawyer Neal Katyal observed,

The crazy part isn't that a judge issued a gag order against a leading presidential candidate. The crazy part is that a leading presidential candidate made a habit of threatening & attacking witnesses, prosecutors, and court officials. That's the story here.

Ultimately, yesterday’s hearing and order were the culmination of weeks of motions and papers, with the assumption that Trump will appeal the ruling. The judge had to get this as right as she could, given the stakes. 

With a more tailored Protective Order in place (and a formal ruling to come), it will be easier for the court to determine whether Trump’s future statements are in direct violation and subject to sanction. Think of it as a scalpel that can address specific violations instead of a sledge hammer that is all-or-nothing.

What was Trump’s main argument against the order?

It might seem odd to argue that a defendant like Trump has a First Amendment right to threaten violence against witnesses and to personally disparage individual prosecutors like Special Counsel Jack Smith and his team, and even bring their families into this. Yet Trump’s lawyer, John Lauro, essentially argued that running for president places Trump above the law and makes everything fair game.

The following discussion summarizes the excellent play-by-play thread courtesy of Roger Parloff, a senior legal analyst and editor with Lawfare, who attended the live hearing.

Lauro’s main argument was that prosecutors were seeking to prevent Trump, the top political candidate for the opposing party, from speaking out on the issues of the day, and that “Joe Biden” was trying to silence his main rival. 

The judge quickly put the brakes on this talk, reminding Lauro that Trump is a criminal defendant and already subject to restrictions on speech due to his release conditions. She admonished Lauro for appearing to speak to an audience other than the court, and that she didn’t want to hear campaign rhetoric.

One tactic Lauro deployed was to suggest that it would be “impossible” and “unfathomable” to put a gag order on a top presidential candidate. Lauro used the example of Mike Pence, who is running against Trump in the GOP primary. Would the order prevent Trump from saying anything bad about Pence? On this question, the judge acknowledged that Trump should be allowed to attack Pence politically, but drew the line when it came to talking about this case specifically.

Lauro also tried to argue that there were no actual threats, “nothing that amounts to intimidation,” and that what was in place with the pre-trial order “was working, frankly.” That last line elicited a laugh from the judge. The pre-trial conditions clearly had not kept Trump from threatening others involved with the case.

She took particular issue with Trump’s frequent use of the word “thug” to describe Special Counsel Jack Smith. She recalled the famous line, “Will no one rid me of this meddlesome priest?”—which incited violence without directly calling for it. At some point, she noted, the words go from a permissible criticism to an incitement to violence.

She asked Lauro, “In what kind of case is it appropriate for a criminal defendant to call a prosecutor a ‘thug’ and stay on the streets?” Lauro sought to deflect the question, saying it’s not language he would use, but she pressed him further: “I’m asking in a normal prosecution, would a defendant be allowed to call a prosecutor a thug?”

“This is not a normal case,” responded Lauro, conceding in a large way that he really believes Trump is above the law.

A third tactic by Lauro was to point out that a gag order would “be assymetrical” and “wouldn’t apply to Joe Biden.” Judge Chutkan shot this down quickly.

“Joe Biden isn’t a party before this court,” she said. “And he’s not under release conditions.” 

Finally, and importantly, Lauro also tried to argue that the only solution to both keep Trump’s free speech rights intact and to preserve the integrity of the court proceedings was to push the trial till after the election. On this point, Judge Chutkan was adamant.

“This trial will not yield to an election cycle, and we will not revisit the trial date,” she said, according to an observer in the courtroom for MSNBC.

Who and what doesn’t the order cover? 

At the hearing, the judge broke the discussion down into several distinct parts. While Trump has openly disparaged D.C., calling it a “filthy, crime-ridden embarrassment,” the judge believed that any tainting of the jury pool in D.C. could be addressed through careful jury selection. For example, if jurors hadn’t heard what the defendant said about D.C., then it wouldn’t have affected them.

Nor, the judge noted, is Trump prevented from attacking Joe Biden in any way, as he is not part of the case. Lawyer for the government Gaston noted that Trump calls the President “Crooked Joe Biden” every day, and nothing in the order would stop him from doing that going forward.

The judge didn’t go for any limitations on what Trump could say about the Justice Department generally either, as he does when he calls it the “Injustice Department.” While prosecutors wanted the order to keep Trump from tarnishing the reputation of the Department, Judge Chutkan believed that he has a right to assert his innocence and to claim the prosecution is politically motivated, and that lies close to the heart of his First Amendment protections. This is why the idea that he has been gagged from speaking about Joe Biden and the Justice Department is simply false. No such restraint exists within the order.

But when it comes to witnesses, court personnel, and the prosecutors and their families, she drew a clear line. Lauro actually tried to argue that mentioning and involving the family members of the prosecutors was somehow protected under the First Amendment and was “part of the reality of being involved in a case of this nature.” Gaston argued back that what Trump did was inflammatory because he understands the impact of his words, and he knows he is motivating third parties to threaten others as a way to intimidate witnesses and chill testimony.

With respect to specific witnesses, the judge walked through examples including statements made by Trump against Georgia Secretary of State Brad Raffensperger; former Chairman of the Joint Chiefs of Staff Mark Milley, whose life he threatened by proposing execution for treason; former Attorney General Bill Barr; and former Vice President Mike Pence. Lauro argued that these men are used to the “rough and tumble” of politics and give as good as they get. But the judge noted that Trump isn’t running against any of these men except Pence, and that he shouldn’t be making intimidating statements about them in public at all given that they are witnesses who will testify against him at trial. 

What mechanisms might be used to enforce the order?

This is perhaps the most unclear point, at least at this time. The judge walked through various tools available to her, should Trump violate the gag order. She asked the government’s lawyer, “Ms. Gaston, I want to ask how this would work. Say I enter this order and Mr. Trump violates the restrictions. What happens next? Revocation of supervised release? Home detention? Contempt?”

Gaston responded that all of these would be available, and she added a few others, from admonishment to financial penalties to modifications of conditions for release, as happened in the Roger Stone case.

The fact that Judge Chutkan is already discussing physical incarceration or home detention is notable, and Trump should take her seriously. For the moment, if Trump violates the gag order, she has said she will entertain motions from the parties or act sua sponte, which is court-speak for the judge acting on her own motion.

Many believe it is just a question of time before everyone is back before the judge on this, so it’s at that time that we’ll see whether the order has strong teeth and whether she means it when she says she will order him detained in some way. My guess is that the next violation, unless it is a death threat like we have seen, will result in a public admonishment and warning, and that she will ratchet up the consequences as we go.

While this may drive many critics of Trump and the judicial system crazy, there is a sound basis for it. One of the objectives Trump has is to actually goad the court into punishing him so that he can prove he is a victim. Jailing or detaining Trump would turn the focus on the judge instead of on Trump as a criminal defendant. Because his argument in the underlying case is that the government has stifled his free speech rights (about falsely claiming he won the election and that it was stolen, for example), putting him in detention as punishment for his “speech” would juice that narrative to its fullest. It might also cause civil unrest or violence in its wake. 

But a gradual turning up of the heat would likely bring more of the public on board, with the idea that Trump can’t keep challenging a direct order from the judge. If, for example, she hits him with a fine and tells him the next time he does it, it’s a week of home detention for a month with no social media privileges, many would see that as fundamentally fair because the notice was clear. 

This will be especially important if Trump crafts his violations in such a way as to create ambiguity around his intent, such as when he wrote, “IF YOU GO AFTER ME, I’M COMING AFTER YOU.” While that seems an obvious threat to prosecutors, Trump is able to deflect by saying he really meant his political rivals. 

Context is king when the king is an online terrorist.

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