Trump's gagging order: making a mockery of free speech?

A judge has imposed a limited gagging order on Donald Trump in the 2020 election interference trial, explaining his right to free speech must yield to the justice process and witness protection. 

Trump, the first former president to be charged with state or federal crimes, is facing four separate indictments. 

District Judge Tanya Chutkan has now limited Trump's ability to publicly attack his prosecutors, whom he has called "thugs", or intimidate court staff and witnesses. Trump must stop posting or reposting attacks on Special Counsel Jack Smith, the prosecutor who has brought two indictments against him and who Trump has repeatedly described as "deranged", and may no longer incite violence against officials. 

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But the "narrowly tailored order explicitly left Mr. Trump free as he pursues his presidential campaign to continue disparaging the Justice Department and President Biden", said The New York Times.

Trump's recently appointed lawyer John Lauro accused prosecutors of "seeking to censor a political candidate in the middle of a campaign". Trump and his legal team have "persistently sought to portray the election case as being about his First Amendment rights", said the paper, "and they are expected to challenge the order vigorously".

Just hours after the ruling, Trump "lashed out" against Chutkan at a campaign event in Adel, Iowa, said Rolling Stone. He told his supporters that what the judge did was "totally unconstitutional". 

'No other defendant would be allowed'

Trump's free speech rights do not allow him "to launch a pretrial smear campaign" against witnesses or prosecutors, ruled Chutkan. "Mr. Trump is facing criminal charges," the judge told the court. "He does not get to respond to every criticism of him if his response would affect potential witnesses… no other defendant would be allowed to do so."

There are "uniquely impossible First Amendment issues" involved in punishing the former president's "dangerous public vitriol", said former federal prosecutor Robert Katzberg for Slate, but here the judge has "struck a reasonable balance".

Her focus on the judicial process, "while allowing Trump to rave about anything or anyone else, draws a difficult line in what seems to be a safe place". 

Chutkan has said she would impose "sanctions as may be necessary" if Trump violates the gagging order, but what that entails is not known. What is certain is that sooner or later Trump will "cross a line" that neither the Justice Department nor Judge Chutkan will be able to tolerate – "it's just what he does".

'Trump's statements erode his defenses'

While "ending the stream of Trump's harsh language may make the case easier to manage", the court order will likely "fuel Trump's claims of political persecution", said The Associated Press. Trump's campaign team "quickly seized on the gag order in a fundraising appeal email Monday afternoon, falsely claiming that it was requested by Biden".

Lauro fiercely opposed any gagging order, saying Trump is entitled to criticise 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 Lauro.

Trump's "bombastic diatribes" also give prosecutors new material that could be used to prove elements of the charges against him, noted The Washington Post. 

Trump "regularly makes declarations about the 2020 election that may be used against him someday in court". Now, prosecutors could lose "one of their best sources of incriminating information – Trump's mouth".

"Trump's public statements erode his defenses enormously," Ty Cobb, a former White House lawyer in the Trump administration turned critic of the former president, told the paper. "He has confessed publicly, though perhaps unknowing, to virtually every element of the Mar a Lago case… Every unscripted thing he says hurts him."