The criminal cases against Donald Trump for attempting to steal the 2020 presidential election are gaining steam. However, the federal court tasked with investigating these charges thoroughly and equitably runs the risk of getting bogged down in a pointless and potentially destructive debate over Trump’s free speech rights.
Judges in New York and Washington, DC, have issued “gag orders” that have become a point of contention. Although these may be legal and warranted, they may cause more trouble than they’re worth for various political and legal reasons.
Last week, Sidney Powell and Kenneth Chesebro entered plea pleas in the Fulton County, Georgia case, providing a major boost to the two criminal prosecutions focusing on election subversion. As of Tuesday, a third member of the Trump legal team, Jenna Ellis, has entered a guilty plea. Some people are “gobsmacked” by the short punishments they got, however the judges probably had good reasons for being so lenient: Only in cases where the prosecution has reason to believe the defendant may provide considerable valuable evidence against co-defendants will she consider offering such steep reductions. Powell, Chesebro, and Ellis may have information that might lead to guilty pleas from other defendants and turn them against Trump, in addition to information that directly relates to the question of Trump’s purpose, which is crucial to the case.
However, a rush of activity surrounding the gag orders may kick sand in the gears just as the court system’s truth-eliciting equipment is picking up speed.
On Friday, Justice Arthur Engoron of a New York state court fined Trump $5,000 for violating a gag order by failing to remove an insulting post about one of the judge’s law clerks. The gag order that federal Judge Tanya Chutkan had set on Trump was temporarily lifted later that day in Washington to give Trump’s attorneys time to present new arguments in opposition to the restraining orders.
The gag orders issued by Chutkan and Engoron may be valid. Pretrial agreements typically include restrictions on the defendant’s ability to speak. For communicating with the media, Sam Bankman-Fried, for instance, had his bail revoked and was sent to prison. In the trials of Kobe Bryant and O.J. Simpson, gag orders were also issued.
Of course, Trump has already declared his intention to challenge Chutkan’s gag order. There is a solid legal basis for her action, but the Supreme Court’s case rule on limiting a defendant’s right to free speech is murky at best.
The Gentile and Stuart cases, which are often cited as illustrative, occurred in the latter part of the 20th century, long before the advent of social media, doxxing, and online lynch mobs. The outcomes of those instances depend on the details of individual situations. These events are very different from an attempted coup d’état by a former president who is now seeking for national office. Trump’s lawyers would need weeks, if not months, to file an appeal with the District of Columbia Court of Appeals and the Supreme Court.
This would lead to unnecessary public insecurity as the underlying criminal procedure rots in ambiguity and delay.
One can easily envision Trump’s legal team triggering a drawn-out, diversionary, and ultimately destructive trail of appeals opposing the directives. Trump’s use of the judicial system to stall, delay, and wear down his political and corporate opponents dates back even before he was president. It’d be strange if he didn’t stick to the same strategy now, when everything is on the line.
In an effort to protect government officers and witnesses from damage, both Chutkan and Engoron drafted restricted injunctions. These two widely criticised gag orders are unlikely to have much of an impact. Trump’s legal team doesn’t try to use the First Amendment as cover to threaten witnesses or get in the way of the investigation. For his bond in Georgia, Trump had to promise he wouldn’t threaten other defendants or witnesses or “otherwise obstruct the administration of justice.” As a result, Trump is only prohibited by Chutkan and Engoron’s directives from directly criticising court personnel or prosecutors. Since it is already illegal, attempting to influence a witness is out of the question.
If that is indeed the objective of the judges, then the gag orders will likely have minimal effect. In the Chutkan injunction, for instance, only “parties and counsel,” meaning Trump and his attorneys, are covered. Those who are not parties to the lawsuit are not bound by it. And in today’s American politics, a politician doesn’t even have to lift a finger to launch a coordinated campaign of hate and violent threats against his or her opponents. Chutkan’s order, as written, does not preclude the ex-president’s wink, nudge, or tacit support of a third-party intimidation operation.
If you believe that’s impossible, consider the Republican defections that doomed Rep. Jim Jordan’s quest for House speaker. If you want to know about the “credible death threats and a barrage of threatening calls” that Iowa Republican Rep. Mariannette Miller-Meeks has received, you should talk to her. Put Rep. Don Bacon (R-Neb.) on the spot about his wife receiving death threats via text message. …and I could go on and on.
Jordan has denied any responsibility for orchestrating these threats and has instead issued a strong (although tardy) condemnation of them. He could have launched them, but he didn’t have to because he probably knew that Sean Hannity’s crew would happily publish an online enemies list complete with contact information.
There is a tangle of ready-to-act activists and media figures surrounding the ex-president. Campaigns of intimidation, like those that have plagued the contest for House speaker, should not be discounted. Trump’s proxies may simply circumvent the rules as they are. Neither Chutkan nor Engoron are likely to have the intestinal fortitude to issue an injunction covering news anchors, bloggers, and other members of the media.
Existing “gag orders,” in short, will be powerless to stem the impending tide. As is typical with the ex-president, they will amount to little when the going gets tough. Meanwhile, Trump has mined them for gold in his campaign speeches. As expected, Trump exaggerates their impact to portray himself as the target of a “deep state” plot to silence him.
The law and justice may be on the side of those who have been offended by the ex-president’s threats and insinuations. However, Chutkan and Engoron would be better off either permanently lifting their gag orders or narrowing the scope of the orders to cover only blatantly unlawful behaviour. While that may not be gratifying, it would pave the way for an honest discussion of who is responsible for the attacks on our democracy and how they were carried out.