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.
You’re not CommitToHonestDiscussion. But it’s funny that she got under your skin so much that you appropriate her name.
Turley– “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.”
+++
True, and I imagine that was the intention.
This openly prejudiced judge should never have had this case.
She may win the annual Roland Freisler award.
But she has a few strong competitors among the Soros/Obama judges.
BS JT, You are so full of it, you pick and choose your “facts” and ignore anything that doesn’t agree with your narrow free speech is everything philosophy, except, when it comes to your own web site where free speech is frequently censored. There have now been two, count them together with me, one, two, people pleading guilty to charges of election interference. Trump loves to say crap that incites people to action and then when they act he sits back smiles and says did I do that? Trump incited a mob to attack the capitol. he has already threatened people with his come after me and I’ll come after you statement. Stop with the free speech BS because you don’t allow it on your own web site.
Poor bug. He leads a bug’s life through and through
🤣 🤣 🤣
The only relevant question is: Would this gag order be legal if the person was not a public figure? It is essential that Trump be treated just like any other defendant.
It is essential that Trump be treated just like any other defendant.
Trump is not. Trump is currently leading in the race to become President. Leading the Current President, the one that controls the DoJ. That means Joe Biden is Targeting his political rival. The Judge is taking sides in a political fight. The 1st amendment protect citizens free speech, and right to petition the government. the 1st Amendment however is especially important in protecting political speech.
The Judge knows this but agrees with the politics of the prosecuting government.
“The Judge is taking sides in a political fight.”
That “judge” is what is known as a “policy judge” — one who uses the law and a courtroom to enforce a regime’s desires. It’s nothing short of tyranny, and the rule of men, cloaked in a robe.
It’s wrong on the face of it. So it’s wrong to do it to anyone. Redress of grievances.
It was pointed out jurors and court staff are considered off limits, but we have seen recently jurors should not be off limits.
It’s always wrong to do. Period.
America’s constitutional government model ended during the George W. Bush era. There is no First Amendment right to free speech.
Today in 2023, any perfectly legal speech exercise will result in your local police or federal official illegally violating your Fourth Amendment rights – remotely searching your computers without a judicial warrant.
Bush’s unconstitutional practices initially were targeted at Democrats legal speech exercises, now Trump supporters are on the receiving end.
General Mark Miley’s 2023 retirement speech on the American Oath of Office (arguably the best and most accurate speech by any American official in over 50 years) – should be mandatory training for all security, intelligence, military and law enforcement personnel to reform this culture.
There is no freedom of speech in America, but not to late to get it back!
Professor Turley,
You did not provide a link to the actual gag order: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2023cr0257-105
If you bothered to read the Order in full, you would have realized that the gag order does not prohibit Trump from criticizing Pence’s campaign platform.
“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.”
Thus, your statement in this post, raising concern for Trump’s First Amendment rights related to the campaign is misplaced.
This carveout means that Trump can criticize Pence on substantive issues, but perhaps not on BS name-calling.
Given his history of witness intimidation (i.e., “If you go after me, I’m coming after you.”), this does not seem preposterous.
Personally, I would have preferred a much narrower ruling, perhaps limited only to speech reasonably related to the case, but that may be a difficult line to draw.
Regardless, Professor, you do a disservice to your readers by mischaracterizing the parameters of the gag order.
You are correct. Of course a constitutional authority like Prof. Turley, with decades of experience in courtrooms, classrooms and testifying before Congress, would NEVER read the gag order before writing a column about it.
To quote President Biden, “come on, man!”
He or his assistants often write these posts quickly. I would hope it is not a comprehension issue, and therefore, it must just be a cutting corners/not reading the Order, issue.
Otherwise, how to you square the Order with Turley’s inaccurate statement: “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.”
But, he can absolutely criticize Pence’s policies and campaign. He just can’t engage in name-calling.
Without accurate context, readers of Turley’s post would think that Trump is prohibited from any negative criticism related to Pence. That is expressly untrue.
This entire lawfare attack on Trump is what we should expect from BLM or Islam when they bring their ideals into our dual justice system. Their interference has revealed some ugly truths:
Our constitution can be trampled without consequence until we vote them out, but there is no protection against the incumbent party using fraud to stay in power. Assuming big tech continues to use a refined Zuckerberg system of putting his insiders in the election system itself, change has no chance, any typically the victors do not give the country back.
You are leaving out the minor fact that Trump did everything he is accused of. Any other person would have already been in jail.
You are correct. Let’s skip the trial and go right to sentencing. That pesky little thing called the Constitution keeps getting in the way,,,
What Trump did or did not do is a historical fact. That is not the same thing as him being legally convicted. Al Capone was a brutal gang leader, even though he was not convicted of that.
The judge is a fascist and doesn’t believe in free speech.
Fascist don’t care…Kangaroo Court, corrupt judges, government conspiracies against republicans, Fascist prosecutors, TOTALLY corrupt IRS, DOJ, DHS, CIA, DNI, EPA, CDC, etc.
The US is USSR 1920’s, German/Italy 1930’s, China 60’s-70’s, end of Rome, France late 1700’s, etc
Democrats commit the crimes….Republican go to jail FOR THOSE crimes!
Trump will be the first person in recorded history to be JAILED for paying back a loan or questioning an election!
The Machiavellians of DC are winning
Read H.G. Wells best selling “Outline of History”….to learn what happens when the Machiavellians Fascist gain control…it isn’t good….what happened when the centralized power of Rome collapsed under its centralized self destruction? 100’s of years of DECLINE!
Remember Debt is going up faster than incomes avg wage $60k…Avg increase $3,600 2022
Federal Deficit this year
$30,000 per Child
$6,500 per American
$17,000 per Household!
Federal Debt
$550,000 Child
$121,000 American
$300,000 Household
Well said Guy. Well said.
@Guy
Well said, indeed. Recent events have illustrated quite clearly just how deeply our institutions have been compromised, and yet STILL most folks sleep walk through it. This is precisely how those you mentioned gained complete power. Agreed that love or hate Trump, this is a frighteningly dangerous precedent, these people are insane and they will never be satisfied with anything less than total control. They have no use for a free republic.
Agreed that love or hate Trump, this is a frighteningly dangerous precedent, these people are insane and they will never be satisfied with anything less than total control.
James, A Democrat billionaire, Chamath Palihapitiya, who voted for Clinton and then Biden had glowing words for the accomplishments of the Trump administration. He derided TDS as it has motivated Democrats to kill the great policies benefitting the United States solely because they hated the messenger.
“It’s a miracle, actually, when you look at it, what they did, you know,” he said.
Calacanis described himself as “no fan of Trump” and “homeless” like his co-host.
“But if you want to objectively look at what they did, it was good work. It was great work,” he said.
Palihapitiya then lamented the damage caused by “Trump Derangement Syndrome.”
“It’s now causing us to not see that good work and then embrace and extend it,” he said.
“So much of the work that happened in that administration turns out to have been right,” Palihapitiya added.
Palihapitiya cited the border wall, long-term debt and Middle East peace as examples.
His comments give us reason for encouragement on several fronts.
For one thing, Palihapitiya did not limit his praise to the Trump administration’s work in the Middle East. He also mentioned the border wall and Trump’s record on war in general.
Likewise, he did not give tepid endorsements and then undermine them with broader anti-Trump rhetoric. He used words like “incredible” and decried the Trump Derangement Syndrome that has plagued so many people.
Meanwhile, Calacanis — who did express negativity about the former president during the podcast — described the Trump administration’s Middle East peace initiatives in miraculous terms.
https://www.msn.com/en-us/news/politics/billionaire-democrat-donor-admits-he-was-wrong-about-trump-misses-life-under-45-s-administration/ar-AA1inB3I
@Olly
Truly. Someday we should actually study TDS, I have never seen so many brains fall out of so many heads so perfectly in sync – it’s almost like a choreographed dance. 🙄 I hope such recognitions are not too little too late. i suppose if there’s hope for billionaires, there’s hope for anyone.
James and OLLY,
It is amazing when someone puts their TDS aside and actually look at the facts and come to sobering conclusions as Palihapitiya has done.
Palihapitiya even admits TDS as damaging.
Apparently it’s not a permanent affliction.
Well articulated Guy!
.
Try cranberry juice.
Bill O’Reilly and Martin Dugard just released their book about the Salem, Massachusetts witch trials (Killing The Witches: The Horror of Salem, Massachusetts). It is excellent and they make a case that the lessons learned during this dark stain on history, influenced the American legal doctrine. Things like due process, innocent until proven guilty, freedom of speech, and separation of church and state (to name a few).
What is deeply disturbing is the malignancy that brought about the witch trials in Salem, false accusations and loss of personal freedom is creeping back into our legal system and government. One need look no further than our current state of affairs. To destroy someone, sue them into poverty, force them to make a deal to take down another accused. Plea bargaining had its genesis during the witch hunt days.
U.S. District Judge Tanya Chutkan is a disgrace.
It’s long past the time to get Kevlar for yourself and your loved ones.
Geeesh, what a bunch of whiners. I bet you’ll all complain when trump is convicted and sentenced to prison.
Waaaaaaa!
Trump and his cabal attempted to overthrow the government of the United States. Let that sink in: overthrow the government of the United States. You talk about losing your rights. Have you read the plans for a 2nd trump term?
Grow up.
Tell us what exactly are plans for Trumps 2nd term?
And if Trump does in fact win in 2024, are you going to “waaaaaa!” too like you did in 2016?
Hey, Cher swore she would leave the US if Trump won in 2016. She recently said she would if Trump wins in 2024. Are you going to join her? Or just cry like you did last time?
Trump did not attempt to overthrow the government. They challenged the election out come just like Democrats have in the past.
This just in,
Democratic billionaire: Trump foreign record ‘pretty incredible’ in hindsight
“So much of the work that happened in that administration turns out to have been right. And that’s what’s so frustrating for me,” he said. “The work on the border wall, we didn’t like the messenger, so we killed the message. Turned out it was right.”
Grow up.
Upstate, only a Democrat can “challenge and election”. What about what Hillary and the Intelligence Community did before, during and after Trump was elected? Hillary actually hired Russian players to effect the election. Hillary actually had government employees trying to subvert the election. Obama, Biden and Hillary, and their cabal, plotted against the elected president.
Keep posting Upstate, you and a few other folks keep this place from being ruined by the paid operatives.
HullBobby,
Well said.
And thank you.
America First Policy Institute (AFPI) aspires to be an administration-in-waiting. Its staff of 172 includes eight former cabinet secretaries from the Trump administration and 20 other political appointees.
AFPI is the newest think-tank preparing for a second term for Mr Trump, but it is not the biggest. The Heritage Foundation has its own presidential transition project and is led by Paul Dans.
The would-be Trump appointees plan to subdue the bureaucracy using Schedule F, shorthand for an executive order issued by Mr Trump in 2020 and rescinded by Joe Biden when he became president. It reflects a view that the federal bureaucracy, whatever its size, should not have any entrenched authority.
“Schedule F is now, I think, Republican doctrine,” says Russell Vought, who ran the Office of Management and Budget under Mr Trump. “I don’t know how a Republican gets elected and doesn’t do that.” It would also be straightforward to enact: Mr Trump could just reissue his old executive order. Again, there is a reasonable version of this idea, in which a small number of recalcitrant civil servants lose their jobs, and a campaign version, where Schedule F becomes the instrument of Mr Trump’s righteous purge of Washington.
Please explain how trespassing leads to control of a country.
From the censors and “get Trump” cult, wait for this perversion of the language:
DT’s “violent” rhetoric.
That is spouted by those who assured us, with a straight face, that the actual violence they support is merely a form of expression.
So here we have the modern Left: Words are actions, if they don’t like those words. Actions are words, if they do like those actions.
When you conflate words and actions, say goodbye to free speech. When you conflate actions and words, say goodbye to safe streets.
Once again Sam invents a claim from the left and then criticizes the left for the claim he’s invented.
The Bill of Rights was written, as an after thought, to specifically allay fears of the people, that this new Federal govt would not use it power to abuse the people. So specific action of he govt were barred. The govt cannot limit the speech of its citizens. Specifically the government cannot restricting the people from criticizing the govt.
To allow the govt, with its unlimited power to silence opponents to the government is a clear violation of Civil Rights.
Hopefully this will get fast tracked to SCOTUS if the appeals court, ignores the constitution as the judge is doing. But Judges NEVER suffer repercussions for the abuse of power. They get overturned, but never suffer for their abuse of citizens.
As President Trump often reminds us, The govt is not attacking Him. The Govt is attacking all of us. Each of us is powerless against the exact same treatment.
Sen Chuck Schumer threatened SCOTUS Justices. Nothing happened. Sen. Liz Warren as well.
Democrats have campaigned off of delegitimizing SCOTUS as has Joseph Biden many times. Democrats set the bar for what is legal or illegal as to “critiquing” Federal Judges and the court system. Trump knows all of this and he likely will continue being who he is. Democrat appointed Judges will continue to oppress Americans by trying to take away our Constitutional rights.
Libturds, continue to violate the constitution. Can judges be prosecuted, for issuing illegal orders? The da, making herself infamous, to get her 15 min of fame, on colbert, is obvious to me.
No.
Just another day in the destruction of freedom in the District of Corruption and throughout America.
This is the apparatchik system using/abusing its levers of power to contain , destroy and silence oppo to it’s virus mimicking qualities. Everyone should be appaled at this over reach of the apparatchik system . But we should not be surprised at this as it is their apparatchik god they worship and like a virus it seeks to protect itself and kill the host.