The judge in Donald Trump’s most important criminal trial has put a muzzle on the mad dog. It’s about time.
Granted, free speech is a sacred right in this country, guaranteed by the First Amendment. But the right to publicly say whatever we want – to even lie with impunity – is not deemed cool by the courts in all circumstances.
In 1991, for instance, our highest court ruled that it’s impermissible to make “extrajudicial statements” that “pose a threat” to “the integrity and fairness of a State’s judicial system.” The justices wrote: “Few interests under the Constitution are more fundamental than the right to a fair trial by impartial jurors,” and therefore, “narrowly tailored” restrictions on free speech become necessary when statements are “substantially likely to have a materially prejudicial effect” on trial proceedings.
That’s basically the way U.S. District Judge Tanya Chutkan ruled earlier this week, to protect the integrity of the impending coup trial in Washington, where the defendant will face four criminal charges. Trump is already in victim mode, ranting that a federal gag order has never been slapped on a presidential candidate ever before in American history. Of course, such a gag order has never been imposed before because no previous presidential candidate has ever been a criminal defendant, much less one who has personally attacked prosecutors and judges and the judicial system in general.
Trump has long been cruising for this bruising – such as pining for the execution of Joint Chiefs chairman Mark Milley, a potential witness – and it’s high time he got treated just like any other criminal defendant who tries to trash talk an impending trial.
“In 30 years as a federal prosecutor, I cannot recall ever seeing a defendant on pretrial release in a felony case threaten the life of a witness – or, in Trump’s case, suggest that a witness should be executed – and remain on pretrial release,” said Glenn Kirschner, a former assistant U.S. attorney “The judicial system’s casual treatment of Trump’s unending threats, harassment and intimidation of witnesses is as perplexing as it is alarming.”
Granted, we should concede that Trump – by dint of his decision to run for president as a way to elude jail – is not like any other criminal defendant. Gag orders are indeed issued in high-profile cases, but there are zero court decisions that specifically address the speech of criminal defendants who run for office, much less the presidency. So what Chutkan did may not be the final word, if higher federal courts weigh in.
She was careful, however, to distinguish between what Trump can say and what he cannot. He remains free to lie his ass off, as usual, about President Biden and the Justice Department (as he did pre-gag order, claiming with no basis in fact that “the Biden administration” had ordered Chutkan to gag him); he remains free to trash talk his rivals in the presidential race (if he wants to keep calling Nikki Haley a “birdbrain,” and Chris Christie a fatso, the fine); and he remains free to lie his ass off about stuff he knows nothing about (in Iowa yesterday he said that you can’t buy flypaper anymore “because of cruelty to animals”). That’s all free speech, broadly covered by the First Amendment.
But he’s hereby barred from calling Jack Smith “deranged,” calling prosecutors “a bunch of thugs,” inviting his twisted followers to “go after” court personnel, attacking what Chutkan calls “any reasonably foreseeable witness,” and impugning the professional integrity of the judges (most notably Chutkan). As she said in court yesterday, shortly before imposing the gag order, “His presidential candidacy does not give him the cart blanche to vilify…public servants who are simply doing their job…This is about language that presents a danger to the administration of justice.”
Two inevitable questions: How long will it take for Trump to violate the gag order (hence, the terms of his pretrial release)? And if that were to happen, what’s Chutkan prepared to do?
We’ve yet to see how far Trump will go to play the martyr. In Iowa, he said: “I am willing to go to jail if that’s what it takes for our country to win and become a democracy again.”
That works for me.