The Trump Gag Order Should Be Struck Down

Below is my column in The Hill on the imposition of a gag order on former President Donald Trump by U.S. District Judge Tanya Chutkan. Despite my long-standing criticism of Trump’s personal attacks on judges and critics, this gag order should be curtailed or struck down on appeal. While the odds tend to favor the lower court in such orders, there is ample reason to object to the scope and language of the order. The ill-defined bar on criticizing the prosecution or witnesses (including one of Trump’s opponents in this election) raises serious free speech concerns. It is also unlikely to have any appreciable impact on the heated public debate over this and other prosecutions of the presidential candidate. Much of this campaign will focus on the alleged weaponization of the criminal justice system. While Trump is still allowed to criticize the case generally, the vague order cuts too deeply into his right to criticize the prosecutor, the judge, and witnesses in the case in this election.

Here is the column:

The imposition of a gag order on former President Donald Trump was overwhelmingly applauded by pundits and press alike. Journalists described the order from U.S. District Judge Tanya Chutkan as “narrow” and “limited.” Most of them lionized Chutkan as an “unflinching” and “no-nonsense”  judge who would not tolerate Trump’s penchant for personal attacks and reckless rhetoric.

However, this order should concern everyone who values freedom of speech. While the odds may favor Chutkan on appeal, this order should be overturned as overbroad and dangerous.

For years, many of us have criticized Trump for his personal attacks on judges and opponents alike. Undeterred, Trump has continued such inflammatory attacks on “deranged” Special Counsel Jack Smith and the “biased, Trump-hating Judge” Chutkan. Smith has pushed aggressively for a gag order, even though one of the major issues in Trump’s campaign is whether the Biden Administration has weaponized the criminal justice system against him and other Republicans.

This week, Chutkan issued a partial gag order and stressed that she will not allow Trump to conduct a “smear campaign” in which he seeks to “vilify and implicitly encourage violence against public servants who are simply doing their jobs.” She stressed that “no other criminal defendant would be allowed to do so, and I’m not going to allow it in this case.” Chutkan reflects this trend in stating categorically that these are the limits that must be imposed regardless of the defendant.

These orders come at a great cost — limiting both parties and counsels in raising objections to alleged abuses of the government. The First Amendment was written in the aftermath of such abuses, including the infamous prosecution of publisher John Peter Zenger 290 years ago in 1733.

Some polls show that a majority now believe the Trump prosecutions are “politically motivated.” Tens of millions oppose the prosecutions, and this will be the single most-discussed issue of the campaign. Yet, one candidate would be both the subject of this national debate and a gag order barring full participation in it.

Chutkan steadfastly refused to recognize that either this case or this defendant are far from typical. Her order bars Trump from making statements against Smith, his staff, court personnel, and potential witnesses. That last category could include one of Trump’s opponents in the presidential election, former Vice President Mike Pence.

If Chutkan had simply barred statements targeting court staff or jurors, there would be no controversy. But she has imposed a vaguely worded court order that could turn campaign speeches into criminal contempt.

While appellate courts have largely ruled in favor of lower courts’ gag orders, there have long been constitutional concerns over these limits on not just the free speech rights of defendants but also their zealous representation by defense counsel.

It is not surprising that Smith dismisses such concerns. Smith has long adopted extreme legal positions that ignore constitutional values. This includes his prosecution of the former governor of Virginia, Robert McDonnell (R), which was reversed in a unanimous 8-0 decision by the Supreme Court in 2016.

The courts remain divided on the standards for curtailing the free speech rights of a defendant. A closely analogous case is the corruption trial of Rep. Harold E. Ford Sr. (D–Tenn.). The district court barred Ford from making any “extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication” that included criticism of the motives of the government or basis, merits, or evidence of the prosecution.

The United States Court of Appeals for the Sixth Circuit rejected the gag order as overbroad and stressed that any such limits on free speech should be treated as “presumptively void and may be upheld only on the basis of a clear showing that an exercise of First Amendment rights will interfere with the rights of the parties to a fair trial.”

There remains a division on the courts of what showing is needed, but there is little evidence of any true balancing in Chutkan’s decision. This and the other trials will remain the focus of heated debate in this campaign. Her order will only silence the voice of the man who many feel is the victim of politically motivated prosecutions. This order will do little to reduce the criticism or the coverage.

Ironically, it is a level of restraint that Judge Chutkan herself has failed to show in the past. For example, in sentencing a rioter in 2022, Chutkan said that the rioters “were there in fealty, in loyalty, to one man — not to the Constitution.”

She added that “[i]t’s a blind loyalty to one person who, by the way, remains free to this day.”

That would seem to imply the guilt of an individual who was not even charged. Yet Chutkan has refused to recuse herself in now trying the very man she was referencing as responsible for the crimes of that day.

As has long been the case, many are turning a blind eye to the implications of this order. They cannot see beyond the name at the top of the caption page. But this order would allow any judge to effectively strip a political candidate of the ability to contest the merits and motivations involved in his own prosecution, including challenging the veracity of prosecutors or witnesses.

In some of these cases, there is ample reason for such criticism. While I have long said that the Mar-a-Lago prosecution by Smith is well-supported in both law and facts, other prosecutions currently ongoing are clearly politically motivated. The most obvious is the prosecution brought by Alvin Bragg in New York — a case that contorts existing law in an attempt to bag a political figure unpopular in his jurisdiction.

While the Chutkan gag order does not extend to the other cases, they constitute a daisy-chain of trials that will have Trump running between courts before the election. There is much to criticize in Smith’s second indictment, which will be tried before a judge who previously denounced Trump in a district where 95 percent of the voters opposed Trump.

After Chutkan ordered a trial just before Super Tuesday, she is now gagging only one candidate — the very candidate who is campaigning against the weaponization of the criminal justice system. You do not have to like or support Trump to recognize the serious problem inherent in such a gag order.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.

266 thoughts on “The Trump Gag Order Should Be Struck Down”

  1. So the same judge overseeing Trumps trial, and who has already called Trump “a bad guy” and implied in court that Trump (who has not been charged with a crime related to Jan 6th) should be in prison for Jan 6th… is talking away Trumps right to free speech?… got it.

    1. It’s precisely persecution, and the judge should not waste taxpayer money on violating defendants constitutional rights.

  2. So here is a question for you: Considering all that we have read about Judge Chutkan’s management of this trial to date, how many of Turley’s readers here besides me hold Judge Chutkin in utter contempt?

    1. This guy right here. Hubris for days, months and years being put on display by the DOJ and its peons.

  3. I bet you don’t even know which prosecution he’s referring to. Guess who else pleaded guilty in the same prosecution.

    1. Federal election questions are being handled by Chutkan.
      Sidney and Ken pled out on Georgia’s case. So, you’re wrong.

  4. Neal Katyal:

    When two different of Trump’s own lawyers have pled guilty to crimes, it becomes very, very hard for Trump to maintain this prosecution is political.

    Justice is coming

    1. Steal the election, lie about, then charge everyone who notices, including lawyers friends family supporters all of them and the public too.
      Then pretend people still believe any of it, especially after all the novel theories and the raging criminals screaming we are going to get orange man bad from their leo positions.
      “the border is closed”
      “inflation is down”
      “gas prices are low”
      “we aren’t a recession, screw two quarters, we changed the definition”
      “safe and effective”
      “wear a mask or three”
      “only big box connected corporate pig stores may be open”
      “we didn’t do that for any reason except safety”
      “we have been winning the war in ukraine”
      “putin started it”
      “russia installed Trump”
      ” a man can get pregnant”
      ” that’s just your assigned born sex, it’s white supremacy nothing real”
      “we can’t comment on that there’s an ongoing invesatigation”
      “he has full charging authority no one is protecting the bidens”

      The lies from the demoncrats never end

      1. Roger that.
        It’s time for people who love God, wife and family and country to stand up and be counted. Vote and try to influence 10 other people to vote.

    2. The indictments have nothing to do with justice. It all about smearing Trump and punishing as many people as possible that support Trump.

      You will notice that 4 felony counts vanished. The perpetrator went free with a slap on the wrist. I dont see any justice in that.

      1. Grossly overcharge and then offer to plea down. Most people would lie through their teeth to go from 10 to 20 years down to 6 years of probation.

    3. Lawyers are supposed to give legal advice. Trump is not a lawyer. Trump listened to their legal advice. A person who retains a lawyer who receives improper legal advice is now subject to criminal prosecution. How does that work? (I also believe that the crimes they pled to had nothing to do with Trump, so again, not sure how this fact relates.)

    4. So in a world where Trump supporters can be held without trial for 1000+ days without trial, Regime lawyers tell Trump lawyers the same awaits them unless they plead ‘guilty’ to a lesser charge. Trying to avoid the rest of life spent as a political prisoner, they do so. Then, because of these pleas, regime shills can then claim the ‘prosecution is not political’, when in fact, quite the opposite is the case.

      It may be that ‘Justice’ is not what you think it is.

      1. Let’s see; risk pleading not guilty to felony counts, spend millions of dollars on a Dem controlled court and jury; or plead quilty to mistemeanors pay a small fine and testify the truth when called upon. Why offer such a deal if the prosecutors had a case? They don’t.

  5. “He can’t name the trial for what it is: The creation of a political “criminal,” and (yet another) attempt to steal an election.”

    Nope. He can say that.

    “When asked, as a candidate for the presidency: What about that indictment? — he is deemed a criminal if he expresses his opinion and tries to defend himself. ”

    Nope. He can do that too.

    He’s free to say things like “the trial is a political witch hunt. The Biden DOJ is targeting me.”

    He simply cannot attack a small group of PEOPLE.

    From the order:
    “Accordingly, and pursuant to Local Criminal Rule 57.7(c), it is hereby ORDERED that: All interested parties in this matter, including the parties and their counsel, are prohibited from making any public statements, or directing others to make any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.
    “This Order shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.”

    1. “He simply cannot attack a small group of PEOPLE.”

      Yeah, the people attacking him – like the zealot prosecutor Jack Smith.

  6. U.S. District Judge Tanya Chutkan is what is known as a “policy judge” — one who uses the courtroom to enforce a regime’s policies. Such “judges” do not enforce objective law. They are not independent arbiters. They hide behind a robe to enforce the rule of men, and to criminalize dissent.

    The Soviets had their policy judges, e.g., Ivan Golyakov, to enforce their communist ideology.

    The Iranian mullahs have their policy judges, e.g., Mohseni-Eje’i, to enforce their Muslim ideology.

    And the Left has theirs, e.g., Chutkan, to enforce their authoritarian ideology.

  7. The leading political opposition, a defendant in a political trail, is muzzled by the government. He can’t criticize the prosecutor. He can’t name the trial for what it is: The creation of a political “criminal,” and (yet another) attempt to steal an election. When asked, as a candidate for the presidency: What about that indictment? — he is deemed a criminal if he expresses his opinion and tries to defend himself.

    I’m sure we’ve seen such Stalinist tactics, somewhere.

  8. Of course the unlawful gag order should be struck down.

    The Democrats know that. But they don’t care.

    Every day the gag order remains in place is a victory. It’s all upside. Except for Donald Trump.

    That is the point.

      1. What a magnanimous display of judicial temperament!

        If Chutkan was serious about justice, she would withdraw the order in its entirety. By staying the order, she is forcing Trump to spend time and money briefing the order while avoiding the embarrassment of a certain reversal.

        This isn’t a judicial exercise. It is a political exercise.

    1. Wow! Did you see the video of ex-officer Chauvin kneeling on George Floyd’s neck.

      Chauvin is in prison for next the 20+ years.

      1. Well, testimony and the words of the Coroner… I guess you guys have to let Chauvin out and apologize.
        I wasn’t sure on this one at the time, but now the proof is in.
        What I was sure about – the idiot criminal with a counterfeit bill, then I watched the video of him fighting and arguing with the cops for a long time, not getting in the back seat of the SUV type police vehicle, forcing his way out – a whole bunch of stuff that was just incredible really. Now the drug autopsy – fentanyl OD- wow, and no damage to breathing. I thought there were multiple drugs but a lot of rumors spew.

        I have noticed the msm almost always pushes cases where the accused is innocent, and they almost always get convicted anyway.
        I have said, it is a power trip and some sort of nefarious intel or security control crap – I don’t know who sits around waiting for these things and then pushes them – could be many members of the demoncrat party all watching and waiting, there are enough cases that those who have the outlined desires can wait for a good case then push it up in the whole news cycle to get the outcome they want.
        In particular they love convicting innocent conservatives, and that is a simple “we hate the white racist neocon blah blah blah capitalist, blah blah , throwback to jim crow, blah blah”

        So ALL these prominent cases in the MSM have a political goal.

      2. He wasn’t kneeling on his neck. He was kneeling on his upper shoulder in a restraining technique approved and taught by the police department and demonstrated in their training manual with a photo that looked exactly the same as Floyd’s restraint.

        The judge wouldn’t let the jury see the photo in the police training manual.


        “Neck restraints have been used at least 237 times by the Minneapolis Police Department since 2015, resulting in 16 percent of the suspects and other individuals losing consciousness, according to use-of-force records cited by NBC News.”

        – NBC

        1. There is a neck restraint that will cause loss of consciousness within seconds. I have seen it demonstrated. But it is very different from the restraint Chauvin was using and generally involves an arm around the neck.

          The LA police used it regularly until it was banned when it was noticed that blacks, with a different physiology, died more frequently than whites with that restraint. The chief [Gates?] famously said the restraint couldn’t be used because it killed more blacks than normal people. That didn’t go over well. Wambaugh said officers mocked it by referring to their Black and White patrol cars as Black and Normal.

          But Chauvin was not using a neck restraint and that was confirmed by the autopsy report very early on. Apparently lynchings don’t always rely on truth when the mob is in charge. Sad when the judge appears to back the mob. Should have been a change of venue. Should have allowed the photo from the police training manual to be shown to the jury. Shouldn’t have allowed a BLM type on the jury. And so on. Kafka couldn’t write this one.

          The Trump prosecutions seem to be following the same ‘ethics’.

      4. And as we found out from one of the County Prosecutors in recorded messages revealed last week, asphyxia didn’t cause his death. He died of an overdose – as we already knew that.

      5. He didn’t die of asphyxiation – he died of Fentanyl poisoning – private messages revealed between one of the County Prosecutors and one of the M.E.s, revealed that fact – but ol’ crackhead Georgie is exactly the kind of Black Men Democrats want.

  9. I need to update the number of guilty pleas in the election interference case. It is now 3, count together with me 1, 2, 3 people that have plead guilty to crimes around the attempt to keep the looser commonly known as trump in office after loosing the election in 2020. I know it is a big number but I’m sure all of you trump supporters can count to 3. Most of you can even do it on one hand. Free speech, my hind end. Free speech ends when crimes have been committed. These are just the beginning, the rest will fall like dominoes.

    1. Dear Biden supporter.
      Innocent before proven guilty, I know these are really big words for you, but what they mean is “‘if you’re charged with a crime you’re innocent until you’re proven guilty in a court of law.
      So tell all your friends, that way they won’t be so stupid.

    2. “attempt to keep the looser [sp?] commonly known as trump in office” — There is no such offense in the criminal code, and NONE of the “1,2,3 people” to which you refer were charged with or pleaded guilty to your imaginary “crimes.”

    3. Lawfare is Financial Warfare, the infinite resources of the state against an individuals life savings. Phony charges, plea deal, financial ruin in either case. Guilty NOT. Williis is a fascist doing the bidding of the fascist regime.

    4. Which particular species of ignoramus are you, Bob? Let me help you. A cardinal principle of our jurisprudence is that all suspects are to be considered innocent (by the law, if not by the court of public opinion) until proven guilty. So, where is the justice in muzzling an innocent man? And, by the way one who loses is termed a loser, not a “looser”, you imbecile.

    5. In Georgia’s case
      The professor is talking about Chutkan (Federal judge). Do try to stay on topic, please.

  10. I enjoy reading various points of view when I get a few moments and often both sides of a debate make valid points. I don’t always agree but I try to give some consideration to the posts. It would be helpful to me (and perhaps others) if those who post as “anonymous” would put a small designation of which one you are. Perhaps a number or a letter? I find it difficult to keep track and thus I usually just scroll on by.

    1. Scroll on. You can blame Turleyville’s webmaster for not being able to tell one “Anonymous” from another. I got attacked and defamed when I posted comments here years ago under my real name — which I STILL use when posting comments anywhere BUT this website — then got banned after I responded to the attacks.

      Years later I came back under a pseudonym, and suddenly Turley’s webmaster began not posting my comments or replies under the pseudonym. It turns out that the ONLY way to get things posted in Turleyville is if the webmaster doesn’t know one “Anonymous” from another.
      This is one of the most fraudulent sites on the web.

      And whether you know it or not, some of these commenters are PAID employees of Turley’s or the website. You can easily figure out which ones they are, as they have a distinct patter of behavior.

  11. I’m so sick of SELECTIVE JUSTICE and LAWFARE which is the very definition of Communism. My dad came back from SERVING this country with PTSD. The left no doubt sleeps well knowing they won’t ever be charged except Clinesmith who got a mere hand slap even though he tried to undermine 75 million voters. Equal justice for all!!!!

    1. Communism: a theory or system of social organization in which all property is owned by the community and each person contributes and receives according to their ability and needs.

      So, no.

  12. Well knock me off my feet. An opinion in the Los Angeles Times says that the Trump gag order is unconstitutional. What in the world is this world coming to.

  13. Democrats Judges = 1

    Justice Clarence Thomas must be giddy, maybe even salivating as he sees Joe “high tech lyncher” Biden LLC, violating the First Amendment. Karma is here and she looks pissed. It only takes 5 Justices to drive the nails into Biden’s coffin, and 3 already have the hammer and nails. The Democrats did this to themselves and to our nation.

    Lock him up!!!!

    Supreme Court to Review Biden Administration Communications With Social Media

    WASHINGTON—The Supreme Court is stepping into the debate over speech rights and misinformation online, agreeing Friday to review lower-court rulings barring White House aides and other officials from pressuring social-media platforms to take down content disfavored by the government.

    The brief order, which put the lower-court decisions on hold until the Supreme Court rules on the issue, was unsigned, as is typical. The court’s three most-conservative justices dissented, warning that “government censorship of private speech” could result.

    1. People need a subscription to read that Wall Street Journal article. Here’s the Supreme Court ruling granting certiori and maintaining maintaining the Stay until final ruling, which means that Joetard is allowed to continue to coerce media to engage in unlawful censorship until the SCOTUS rules — maybe sometime next year:

      Alito, Gorsuch, and Thomas dissent regarding not allowing the Preliminary Injunction to proceed, and per the dissent authored by Alito, sound pretty disgusted by the majority refusal to even state their reasons — raising the question of whether the majority even bothered to READ the submissions.

  14. Professor Turley, I appreciate your dedication to free speech and your stalwart defence of the First Amendment. But I am APPALLED you have not taken the time to comment on what might just be, for ordinary Americans, the most consequential judicial attack on speech freedom in modern times; The October 18 seven month prison sentence of Douglass Mackey in the Eastern District Court of New York over memes he created during the 2016 presidential. The DoJ press release is here . What is especially galling about both the conviction and the sentencing is that such satirical memes (some almost identical) were common during the 2016 election and split almost evenly between both hegemonic-gangster parties. I know you’re a busy man but really sir, another Trump focussed article essentially repeating what you’ve said a dozen times before in multiple articles? How about something fresh to which ordinary folks and directly relate (and fear). Anyone interested in supporting Mackey in his continuing fight – (presumably he will, or is already, appeal this) you can do so here .

    1. I would have upvoted your comment, but I can’t agree with the stuff about “dedication to free speech” and “stalwart defence of the First Amendment.” Many comments are tegularly deleted from Turley’s comment sections, or never posted by the webmaster in the first place, despite violating no published rules, and often not even being particularly controversial.
      Otherwise, I’d upvote everything else you wrote here.

  15. 𝐓𝐫𝐮𝐦𝐩 𝐅𝐢𝐧𝐞𝐝 $𝟓,𝟎𝟎𝟎 𝐁𝐲 𝐍𝐞𝐰 𝐘𝐨𝐫𝐤 𝐉𝐮𝐝𝐠𝐞 𝐅𝐨𝐫 𝐕𝐢𝐨𝐥𝐚𝐭𝐢𝐧𝐠 𝐆𝐚𝐠 𝐎𝐫𝐝𝐞𝐫
    The New York judge presiding over Donald Trump’s civil fraud trial fined the former US president $5,000 on Friday for not complying with a partial gag order and threatened him with possible jail time for future violations.
    World News Agence France-Presse ~ October 21, 2023

    1. The post was put up long before the judges unconstitutional gag order. The Judge must have been sick the day they taught ex post facto in 1L

        1. The Judge does not have the power to censor a web site … or abridging the freedom of speech, or of the press;…

          Truth Social cannot be bossed around by a judge. Truth Social has broken no law, but even if it had….the judge can only participate in the trial after an indictment.

          That’s why this persecution is wrong.

          1. He was already found liable for fraud. This trial is just to determine disgorgement. Jeez, if you’re going to complain about things, educate yourself about the facts of the case.

            1. The “good” judge is a liberal hack who is doing the alt lefts bidding for them. Who was defrauded? Banks agreed to all the loans, banks were paid back all the loans, Trump paid HIGHER taxes due to many of his property evaluations. Cohen just testified yesterday that Trump DID NOT EVER direct him to inflate or undervalue his properties… so who was defrauded? Furthermore the “fair and impartial” judge called Trump “a bad guy” and said he should be in prison for Jan 6th, this despite the fact Trump has not even been charged with any crime related to Jan 6th never mind tried and convicted. You’re as big of alt left hack as the Judge…

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