Proposed gag order on Trump is putting the judge in a tricky position

Former President Donald Trump speaks during the Pray Vote Stand Summit, Friday, Sept. 15, 2023, in Washington. AP FILE PHOTO

WASHINGTON — A proposed gag order aimed at reining in Donald Trump’s incendiary rhetoric puts the judge overseeing his federal election interference case in a tricky position: She must balance the need to protect the integrity of the legal proceedings against the First Amendment rights of a presidential candidate to defend himself in public.

U.S. District Judge Tanya Chutkan will hear arguments Monday in Washington over whether Trump has gone too far with remarks such as calling prosecutors a “team of thugs” and one possible witness “a gutless pig.”

It is the biggest test yet for Chutkan, underscoring the unprecedented complexities of prosecuting the former Republican president as the judge vows not to let political considerations guide her decisions.

Ending the stream of Trump’s harsh language would make the case easier to manage. But among the difficult questions Chutkan must navigate is how any gag order might be enforced and how one could be fashioned that does not risk provoking Trump’s base and fueling his claims of political persecution as he campaigns to retake the White House in 2024.

“She has to think about the serious risk that it’s not just his words that could trigger violence, but that she could play into the conspiracy theories that Trump’s followers tend to believe in, and that her act of issuing a gag order might trigger a very disturbing response,” said Catherine Ross, a George Washington University law school professor.

“If we allow that to stop a judge from doing what is called for, that’s a big problem for rule of law. But on the other hand, if I were the judge, I would certainly be thinking about it,” she said.

Short of issuing an order, Chutkan has already suggested that inflammatory comments could force her to move up the trial, now scheduled to begin in March, to guard against tainting the jury pool. Judges can threaten gag order violators with fines or jail time, but jailing a presidential candidate could prompt serious political blowback and pose logistical hurdles.

Chutkan, who was nominated to the bench by President Barack Obama, isn’t the first judge to confront the consequences of Trump’s speech. The judge in his civil fraud trial in New York recently imposed a limited gag order prohibiting personal attacks against court personnel following a social media post that maligned the judge’s principal clerk.

Special counsel Jack Smith’s team envisions a broader order, seeking to bar Trump from making inflammatory and intimidating comments about lawyers, witnesses and others involved in the case that accuses the former president of illegally plotting to overturn his 2020 election loss to Democrat Joe Biden. Trump’s lawyers call it a “desperate effort at censorship” that would prevent Trump from telling his side of the story while campaigning.

A complicating factor is that many of the potential witnesses in the case are themselves public figures. In the case of Trump’s vice president, Mike Pence is also running against Trump for the GOP nomination. That could open the door for Trump’s team to argue that he should be permitted to respond to public broadsides he sees on television or seek a competitive edge by denouncing a political rival for the White House.

Burt Neuborne, a longtime civil liberties lawyer who challenged gag orders on behalf of defendants and lawyers in other cases, questioned whether a formal order was necessary because witness intimidation is already a crime and the court can guard against a tainted jury by carefully questioning prospective jurors before trial. A gag order may also slow down the case because it’s likely Trump either violates it and the judge will want to punish him or Trump will challenge the order in advance, he said.

“And so in some sense, you may be playing directly into his hands by essentially creating yet another mechanism for him to try to push this until after the 2024 election because my sense is that any gag order that she issues will eventually reach the Supreme Court,” Neuborne said.

But Barbara McQuade, a former U.S. attorney in Michigan, said she believes the judge can issue a narrow enough order that withstands legal challenges and protects both the case and Trump’s abilities to campaign.

“Especially in this case, where Donald Trump has made it apparent that he will say all kinds of outrageous and vitriolic things about the parties, about the judge, about witnesses unless she acts,” said McQuade, a University of Michigan Law School professor. “So in some ways she has, I think, a responsibility to act here.”

There is some limited precedent for restricting speech of political candidates who are criminal defendants.

In one case, a federal appeals court in 1987 lifted a gag order on U.S. Rep. Harold Ford Sr., a Tennessee Democrat charged in a fraud case. Ford, who was ultimately acquitted, claimed the case brought under Republican President Ronald Reagan’s administration was racially and politically motivated.

Ford’s gag order prohibited him from even sharing his opinion of or discussing facts of the case. The court noted that Ford would soon be up for reelection and said the gag order would unfairly prevent him from responding to attacks from his political opponents and block his constituents from hearing the “views of their congressman on this issue of undoubted public importance.”

Another appeals court in 2000 upheld a gag order challenged by then-Louisiana Insurance Commissioner Jim Brown in a fraud case, noting the order allowed assertions of innocence and other general statements about the case.

The court, however, also noted that the judge briefly lifted the gag order to avoid interfering with Brown’s reelection campaign, saying that the “urgency of a campaign, which may well require that a candidate, for the benefit of the electorate as well as himself, have absolute freedom to discuss his qualifications, has passed.”

Chutkan herself has experience with gag orders.

In 2018, she imposed an order restricting the comments of lawyers in the case of Maria Butina, a Russian gun activist who pleaded guilty to working in America as a secret agent for Moscow. The order followed prosecutors’ admission that they had wrongly accused Butina of trading sex for access as well as public comments by her lawyer that Chutkan said had “crossed the line.”

The next year, U.S. District Judge Amy Berman Jackson imposed a gag order on Trump ally Roger Stone in his obstruction and witness tampering case after he posted a photo of judge with what appeared to be crosshairs of a gun. Though she warned she could jail him if he violated the order, she instead barred him from using social media months later after he again publicly disparaged the case against him.

But that order was in direct response to a specific action, said Bruce Rogow, Stone’s attorney in that case. He said he was dubious that Trump’s attacks, “while in very poor taste,” posed the kind of danger to merit a gag order.

“Trump’s talk may be déclassé, but the First Amendment defends his right to present his distorted view of the world up to the point that he presents a true threat to people or the administration of justice. Not easy to measure,” Rogow wrote in an email. “Like obscenity, one knows it when you see it.”