An Analysis Of The Gag Orders In Criminal Cases Against Former President Trump

Civil Rights Policy Brief #213 | By: Rodney A. Maggay | October 25, 2023

Photo taken from: cnbc.com

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Policy Summary:

Over the last two months former President Donald Trump has been issued a gag order in two separate criminal cases against him.

In New York, the former President is facing criminal charges of civil fraud brought by New York Attorney General Letitia James. That case accuses Donald Trump and his sons of fraudulently inflating his personal net worth in order to acquire bank loans on more favorable terms. In the months leading up to the trial, the court issued Trump a limited gag order in order to try and limit some of his inflammatory comments while allowing him to still speak on public issues. However, on his social media account Truth Social, the former President posted a statement attacking one of Judge Arthur Engoron’s law clerks and implied that the law clerk had had an inappropriate relationship with Senate Majority Leader Chuck Schumer. (Judge Engoron is the judge overseeing the civil fraud trial). The disparaging post was taken down from the Truth Social site but was not taken down from a separate Trump campaign website. Judge Engoron subsequently fined Trump for the delay in taking down the post from his campaign website but also warned Trump and his legal team that more severe sanctions would be considered, including being held in contempt of court and even jail time, if Trump and his team did not abide by the limited gag order and if they continued to ignore the court’s orders.

In Washington D.C., President Trump is facing four criminal charges in connection with his attempt to subvert the 2020 presidential election. The trial is scheduled to begin on March 4, 2024 before Judge Tonya Chutkan. In recent weeks, former President Trump on his social media platforms and in public speeches has attacked witnesses, prosecutors (he referred to them as thugs) and court staff. In response, Judge Chutkan issued a gag order that barred the former President from making inflammatory and derogatory statements aimed at court personnel. Judge Chutkan stated “First Amendment protections yield to the administration of justice and to the protection of witnesses.” However, on October 20th, Judge Chutkan agreed to temporarily stay her gag order in order to permit Trump’s attorneys to argue before her why the President should not be restricted in his public comments. Judge Chutkan also ordered special counsel Jack Smith’s team to file their arguments opposing the lifting of the restrictions and gag order on comments made by Trump. Additionally, Trump’s lawyers filed an appeal to the United States Court of Appeals for the District of Columbia Circuit. LEARN MORE, LEARN MORE, LEARN MORE, LEARN MORE

Policy Analysis:

Former President Trump is facing separate criminal charges for separate actions in separate courts yet the gag orders issued in the separate cases have a common theme running through both of them. How should a court balance the First Amendment Free Speech rights of a criminal defendant with a court’s role in maintaining operations of the court and in administering justice?

A closer analysis of both of the gag order situations reveals that the Trump team’s arguments for Free Speech rights for their client have been mischaracterized. In the New York case, Trump’s comments were directed at a court staffer in order to smear her, the court and indirectly, Democratic Senator Chuck Schumer. In the D.C. election subversion case, Trump’s comments there followed a similar pattern. The statements he made about Special Counsel Jack Smith and his team of prosecutors was intended to again smear and belittle court personnel who were simply doing their jobs. Both instances show an intent to intimidate people out of the President’s anger and frustration and it was a point singled out by Judge Chutkan.

In a hearing to determine the scope of the gag order in the D.C. case, Judge Chutkan acknowledged that Trump’s rhetoric could intimidate witnesses and the jury pool and could influence some of Trump’s followers to violence. But noting that there were legitimate free speech concerns, she brilliantly divided Trump’s comments into five categories and grilled Trump’s lawyers on what could be an appropriate restriction in each scenario. There were Trump comments on the people of Washington, D.C., comments on the Biden Administration, comments on the prosecutors, comments on the court and finally comments on the witnesses. Judge Chutkan declined to add further restrictions on the first two categories because of Trump’s free speech rights to talk about public policy issues (crime in D.C. and criticism of Biden’s Administration) and because he is a presidential candidate who would be expected to weigh in on these matters. However, with the last three Judge Chutkan drew a line that targeting court staff, witnesses or the prosecutors and their family were unacceptable because of the potential for violence against them to help Trump in some way. She stated that all criminal defendants are rarely permitted to interfere with court operations or proceedings with inflammatory speech. A criminal defendant running for President of the United States next year should not be given a free speech exception to intimidate, harass and potentially place in harm’s way court staff and personnel or their families. While balancing what a political candidate can say and preventing possible harm is entwined with Tump’s case, Judge Chutkan gets it right when she broke down Trump’s comments into categories and singles out the attempts at harassment and intimidation as speech not being worthy of free speech protections.

All four of Trump’s criminal cases are moving forward towards trial. So, it will be interesting to see if the former President will abide by the court’s rulings on what he can say or if he will ignore them and face potentially stiffer penalties, including jail time.

Engagement Resources:

• Vox – explanation of the gag order against Trump and possible consequences if he violates it.
• Free Speech Center – analysis of the gag order against Trump.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.