The federal judge overseeing the 2020 election interference case against Donald Trump in Washington imposed a narrow gag order on him on Monday, barring the Republican former president from making statements targeting prosecutors, possible witnesses and court staff.
The order from U.S. District Judge Tanya Chutkan marks a milestone moment in the federal case that accuses Mr. Trump of illegally conspiring to overturn his 2020 election loss to Democrat Joe Biden. It’s the most serious restriction a court has placed on Mr. Trump’s incendiary rhetoric, which has become a centrepiece of his grievance-filled campaign to return to the White House while fighting criminal charges in four cases.
The order may end a line of attack that Mr. Trump has made central to his campaign for the 2024 GOP presidential nomination. But it may be only the beginning of an unprecedented fight over what limits can be a placed on the speech of a defendant who is also campaigning for America’s highest public office.
In a social media post shortly after the hearing in Washington’s federal court, Mr. Trump vowed to appeal. During a campaign appearance in Iowa later Monday, Mr. Trump decried the order as unconstitutional, and claimed it would only help him in the polls.
Speaking from the bench, Judge Chutkan said Mr. Trump is entitled to criticize the Justice Department generally and assert his belief that the case is politically motivated but can’t mount a “smear campaign” against prosecutors and court personnel.
“No other criminal defendant would be allowed to do so, and I’m not going to allow it in this case,” Judge Chutkan said.
Judge Chutkan, who was nominated to the bench by former president Barack Obama, said she would impose “sanctions as may be necessary” if the gag order is violated, but she wasn’t more specific. 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.
While ending the stream of Mr. Trump’s harsh language may make the case easier to manage, the court order is likely to also fuel Mr. Trump’s claims of political persecution. Mr. Trump’s campaign quickly seized on the gag order in a fundraising appeal e-mail Monday afternoon, falsely claiming that it was requested by Mr. Biden.
At rallies and in social media posts, Mr. Trump has repeatedly sought to vilify Special Counsel Jack Smith and other prosecutors, casting himself as the victim of a politicized justice system working to deny him another term. His disparaging remarks have continued since prosecutors requested the gag order last month, including in a media post on Sunday in which he called Mr. Smith “deranged” and called Judge Chutkan “highly partisan.”
Gag orders are not unheard of in high-profile cases, but there is little legal precedent for court orders limiting the speech of defendants running for public office and none addressing presidential candidates. Legal experts have said the issue may end up before the U.S. Supreme Court.
Mr. Trump’s lawyer John Lauro fiercely opposed any gag order, saying Mr. Trump is entitled to criticize prosecutors and “speak truth to oppression.”
“He is allowed to make statements the prosecution doesn’t like. That’s part of living with the First Amendment,” said Mr. Lauro, who declined to comment on the ruling after the hearing.
The ruling came as Mr. Trump was on his plane travelling to early-voting Iowa for a pair of campaign events. It is unclear whether Mr. Trump will abide by the new restrictions, and for how long. In a statement, a Trump spokesperson called the judge’s decision “an absolute abomination.”
Mr. Smith’s team argued that Mr. Trump knows that his incendiary remarks – calling the justice system “rigged,” Judge Chutkan a “Trump-hating judge,” and prosecutors a “team of thugs” – could inspire his supporters to threaten or harass his targets. Prosecutors said it is part of Mr. Trump’s effort to erode the public’s faith in the judicial system just like they say he sought to undermine confidence in the 2020 election by spreading lies of fraud after he lost to Mr. Biden.
“What Mr. Lauro is saying is the defendant is above the law and he is not subject to the rules of this court like any other defendant is,” prosecutor Molly Gaston told the judge. “All this order would do is prevent him from using the campaign as an opportunity to make materially prejudicial statements about this case.”
The judge repeatedly pushed back against claims from the defence that prosecutors were seeking to censor Mr. Trump’s political speech. Judge Chutkan said Mr. Trump “does not have a right to say and do exactly as he pleases.”
“You keep talking about censorship like the defendant has unfettered First Amendment rights. He doesn’t,” Judge Chutkan told Mr. Lauro. “We’re not talking about censorship here. We’re talking restrictions to ensure there is a fair administration of justice on this case.”
She also cut off Mr. Trump’s lawyer when he suggested the case was politically motivated, telling him: “Obviously, you have an audience other than me in mind.” And she rejected a defence bid to delay the trial, currently scheduled to begin in March, until after the 2024 election, saying “this trial will not yield to the election cycle.”
Mr. Lauro said Mr. Trump had not violated his pretrial conditions, and those were enough to keep him in check for the future. He told the judge, “What you have put in place is working.” Judge Chutkan burst out laughing.
“I’m going to have to take issue with that,” the judge said.
Reading aloud a slew of statements from Mr. Trump, Judge Chutkan repeatedly raised concerns that his remarks could inspire violence.
“If you call certain people thugs enough times doesn’t that suggest, Mr. Lauro, that someone should get them off the streets?” she asked Mr. Trump’s lawyer.
Prosecutors said Mr. Trump’s litany of attacks was already having consequences. They noted that a top prosecutor on Mr. Smith’s team received intimidating communications after being singled out by Mr. Trump, and a Texas woman was charged in August with making racist death threats against Judge Chutkan, who is of Black and Asian descent, in a phone message left at her chambers.
It’s the second gag order imposed on Mr. Trump in the last month. The judge overseeing Mr. Trump’s civil fraud trial in New York earlier this month issued a more limited gag order prohibiting personal attacks against court personnel following a social media post from Mr. Trump that maligned the judge’s principal clerk.