NRPLUS MEMBER ARTICLE {A} s if trying to prove Donald Trump’s point that her bias against him should disqualify her from presiding over a criminal case against him, Judge Tanya Chutkan has imposed a limited gag order on the former president and current presidential candidate, forbidding him from further abominations of the prosecutor, court personnel, or likely witnesses. It is the second gag order issued against Trump in two weeks — Judge Arthur Engoron having imposed one in the ongoing New York State civil fraud trial after Trump claimed that the judge’s law clerk was the girlfriend of Chuck Schumer, the U.S. Senate’s top Democrat (and Trump nemesis).
Judge Chutkan is the Obama appointee to the federal district court in Washington, D.C., who is assigned to the 2020 election-tampering case brought by Jack Smith, the Biden Justice Department special counsel. Like a good Democrat, Chutkan has publicly adhered to the narrative that Trump directed the violence at the Capitol on January 6, even though he has never been charged with incitement or any other crime of violence — not because the Biden Justice Department hasn’t been trying, but because it lacks evidence. And consistent with this Democratic narrative, in imposing the limited gag order in an oral ruling from the bench on Monday, Chutkan accepted the prosecutors’ contention that Trump is “encouraging violence” by his publicly inveighing that, for example, the case is “rigged,” Smith is “deranged,” Chutkan is a “radical Obama hack,” and “if you go after me, I’m coming after you” — even though, again, Smith has not charged Trump, nor could he credibly, with incitement or obstruction of justice based on anything Trump has said or done.
As I’ve repeatedly observed, Trump is morally and politically responsible for creating the conditions that led to the Capitol riot. He should have been impeached, removed, and disqualified over his post-2020-election conduct. That, however, does not render him criminally culpable for the riot, nor does it justify curtailing his First Amendment protections.
Trump’s ongoing commentary about the prosecution is reminiscent of his Ellipse speech immediately prior to the uprising at the Capitol: unhinged and offensive. But even as we were rightly repulsed by the Ellipse speech, we recognized that he had a constitutional right to give it. Similarly, he has a right to contend — however appalling his word choices — that he is being subjected to a politicized prosecution by his partisan opponents, who are abetted by a biased judge. He’d have that right even if he wasn’t a political candidate; the fact that he is one heightens the court’s duty to minimize the intrusion of judicial process on the electoral process — a duty to which Chutkan is impervious.
Smith has sought the order restricting Trump’s free-speech rights while Trump is the likely Republican nominee in the presidential race and while his opponents, Republican and Democrat, are under no restrictions regarding what they may say about the prosecutions against him. Smith, moreover, strategically timed the indictment and pressed for a speedy trial over defense objections in order to ensure that the trial takes place during the 2024-election campaign — a strategy he has also employed in the separate indictment he brought against Trump in Florida.
With Judge Chutkan as the wind at his back, Smith contends that the “administration of justice” is the ne plus ultra of public interests. By their lights, the judicial process need neither cede ground to nor make accommodations for any other constitutional concern — even the robust political speech that the First Amendment guarantees in campaigns for the nation’s highest office.
This imperial “administration of justice” is justice for the government, not the accused — a warping of the constitutional order in which the judiciary is supposed enforce due process in order to protect the accused from potential abuses of executive power. Ergo, the Smith/Chutkan theory holds that the government has a right to a speedy trial, even though (1) the Constitution provides that safeguard only to an accused, who in this case has waived it, and (2) in reality, it is not the government but the Democratic Party that has an interest in a speedy trial — i.e., one that ties its main political opponent up in court and generates negative publicity for him during key junctures of the campaign. If the chief concern were due process rather than electoral politics, the Justice Department and the court would not be prejudiced in the slightest if Trump’s trial were postponed until after the November 5, 2024, election. If that happened, Trump’s free-speech and fair-trial rights would be protected with no harm to the administration of justice.
My point here is not to endorse Trump’s unseemly rhetoric but rather to recognize that the Constitution permits offensive speech. Significantly, our law’s presumption against prior restraints is not a shield against the consequences of repellent rhetoric. If Trump’s comments rise to the level of incitement or libel, he can and should be criminally prosecuted or civilly sued. If his comments are provably false or if they shed light on his knowledge, intent, and motivation with respect to the crimes charged, they may be used against him by the prosecution. If Trump’s remarks continue to evince a lack of contrition for his heedlessness and a lack of regard for the rule of law, the court is certain to take that into account in imposing sentence if he is convicted at trial.
But all that said, as long as Trump’s remarks do not violate the law, the judge has no business telling him — as he campaigns, and as his unencumbered opponents make an issue of the indictments against him — that he can’t talk publicly about the court, the prosecutors, and the witnesses.
According to Chutkan, Trump’s tirades against the court, the prosecutors, and such likely witnesses as former vice president Mike Pence (whose own 2024 presidential campaign features speeches about how he faced down the pressure Trump put on him to violate the Constitution) could undermine the administration of justice. Even if there were no other ways besides constitutionally fraught restrictions on speech to address the situation, Chutkan’s expressed concerns are dubious. Even on the rushed schedule Smith and Chutkan have imposed over defense objections, the trial is still five months away. Obviously, no jury has yet been selected. And the suggestion that Trump’s commentary may have a material effect on the pool from which the jury will be selected is unpersuasive — Trump and his penchant for noxious rhetoric are well known and widely detested in Washington, D.C., as is his insistence that he can’t get a fair trial there. Regardless of whether Trump never said another word about the case or talked nonstop about it, the Washington jury pool’s assessment of Trump (after his four-year presidency there) is fixed. And it’s not as if muzzling Trump is going to reduce pre-trial publicity about the case.
In an unconvincing bit of throat-clearing, Chutkan insisted that her limited gag order “is not about whether I like the language Mr. Trump uses.” She also seemed to recognize that Trump is a candidate for public office who needs to be able to speak publicly about the case. Yet she rationalized that Trump’s right to free speech “does not give him carte blanche” to “vilify and implicitly encourage violence against public servants simply doing their jobs.”
Put aside that Chutkan has to say that Trump might “implicitly” encourage violence because she has no evidence that he explicitly did so. Who says the public servants are “simply doing their jobs”? That’s Chutkan’s stated belief. Even assuming she holds it in good faith, the proposition is not necessarily true just because she believes it. More important, even if we stipulate that what the Honorable Tanya Chutkan believes is apodictic, the Constitution does not permit government officials to impose an official, unquestionable version of what is true.
Trump argues that the prosecutors are Biden-administration officials who have been dispatched by the president and his attorney general, for partisan political reasons, to leverage the criminal-justice process against Biden’s main opponent in the 2024 race. He further argues that Chutkan is biased against him, relying not only on her status as an Obama appointee but on harsh remarks she has undeniably made about him in the course of her presiding over January 6 cases involving other defendants. The fact that Chutkan believes that Trump is wrong about these things does not make him wrong. Even less does it mean that Chutkan, under the “administration of justice” guise, may use government power to muzzle his claims without regard for other constitutional interests at stake.
Trump is not a lawyer. He did not voluntarily join the legal profession and the bar of the court, for which privileges lawyers agree to the restriction of their free-speech rights — committing to refrain, for example, from public comments that could undercut the public legitimacy of judicial proceedings. And far from agreeing to participate in the January 6 case, Trump has been coerced into it and objects strenuously. In no way, then, could he be understood, either expressly or impliedly, to have waived his First Amendment rights in order to take part in this prosecution.
Under the Supreme Court’s relevant test, the government may not burden a fundamental right unless it can establish (1) a compelling interest and (2) that its proposed regulation is narrowly tailored to vindicate that interest while imposing the least restrictive burden on the right implicated. Prior restraints on speech are particularly disfavored.
To be sure, the administration of justice is an important public interest. It is not, as Chutkan and Smith would have it, the only public interest that matters. But the government undeniably has an interest in ensuring that cases are decided by impartial jurors based solely on the evidence admitted at trial (as opposed to, say, media reports and social-media diatribes). Nevertheless, the Supreme Court has been emphatic that this interest in the administration of justice does not justify censoring out-of-court commentary about pending cases or investigations. That is so even when such censorship would not interfere with interests that are at least equally compelling — such as political speech in connection with democratic elections, the very core of the Constitution’s free-speech protection.
There is no doubt that, if the press or high-profile commentators who were not parties to the litigation made the same provocative remarks about the January 6 prosecution that Trump has made, an application by the government to censor them would be laughed out of court. If a judge were intemperate enough to issue such a gag order, it would be invalidated instantly by an appellate court. The substance of what Trump has said — which, given his history and self-interest, carries less weight coming from him than it would if it came from a more reliable commentator — cannot credibly be regarded as a clear and present danger to the administration of justice.
In its divided 1991 decision in Gentile v. State Bar of Nevada, the Court invalidated a reprimand against a lawyer who held a press conference to speak out in his client’s defense — even as some of the justices opined that, because lawyers representing parties are “officers of the court” (i.e., uniquely subject to judicial and professional discipline), they could theoretically be subjected to restrictions that may not be applied to the media and non-parties to a litigation. In discussing permissible speech restrictions on trial participants, the opinions in Gentile occasionally fail to distinguish lawyers in a case from their clients, but the justices’ “officer of the court” rationale for speech restrictions is inapplicable to nonlawyers.
In addition, as unwilling as the High Court has been to abide censorship, its relevant cases have not involved the situation in Trump’s case: a gag order imposed on a nonlawyer party who not only has not waived his First Amendment rights but is a leading major-party candidate in a presidential election, in which the prosecutions against him — brought by an administration led by his principal political rival, President Biden — are a significant campaign issue.
Also noteworthy is the Court’s observation (in, for example, the 1978 case of Landmark Communications v. Virginia) that judges and courts have “no greater immunity from criticism than other persons or institutions,” and that prosecutors, police, and judicial processes must be subjected to “extensive public scrutiny and criticism” in order to “guard[] against the miscarriage of justice.”
Trump has every right to contend that he is the victim of politicized selective prosecution and that the judge is biased against him. He would have that right even if the prosecutor and judge had maintained appropriate discretion in their public commentary. But they haven’t.
On the day he indicted Trump, special counsel Smith made a press statement in which he strongly implied that Trump was criminally responsible for the violence of the Capitol riot. Not content with that, the prosecutor lavishly praised the “heroes” of law enforcement who “put their lives on the line to defend who we are as a country and as a people.” This, despite the facts that (1) Smith has not charged Trump with Capitol riot offense, much less an offense involving the use of force against police; (2) in its hundreds of prosecutions of Capitol riot offenses (including forcible ones), the Justice Department has never alleged that Trump was complicit, much less that he was an unindicted co-conspirator in violent criminal schemes; and (3) prosecutors are supposed to limit their public commentary about an Indictment to the charges filed and are duty-bound to avoid inflammatory, prejudicial commentary about uncharged crimes.
For her part, in sentencing Capitol riot defendant Christine Priola, Chutkan saw fit to make patent reference to Trump, rebuking him and chiding the Justice Department for its failure (at the time) to charge him with a crime:
The people who mobbed that Capitol were there in fealty, in loyalty, to one man — not to the Constitution, of which most of the people who come before me seem woefully ignorant; not to the ideals of this country, and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day.
In another sentencing, this time of Capitol riot defendant Robert Palmer, Chutkan repeated her not-very-veiled complaint that a defendant was being sent to prison while “people who exhorted him” had not been charged — ruefully adding that it was not up to her to “make charging decisions,” even though “I have my opinions” on the subject.
If the administration of justice means anything, it means that the government and the court are not permitted to undermine a defendant’s presumption of innocence and engage in gratuitous public commentary that can have the effect of tainting the jury pool. It cannot be that Trump’s commentary, as unsavory as it is, threatens the justice system but the untoward commentary of the prosecutor and the presiding judge is acceptable.
Judge Chutkan’s limited gag order should be invalidated on appeal. She not only fails to weigh the administration of justice against other equal or greater constitutional concerns, her stated rationale evinces no appreciation of a duty to engage in such a weighing. Trump has a right to attack the prosecution and the court — as a defense at trial, as a response to prejudicial statements made by the prosecutor and the judge, and as protected political speech in a campaign in which President Biden, Trump’s top rival, on whom there are no speech restrictions, stands to be the chief beneficiary of a prosecution brought by the Biden Justice Department.
That doesn’t mean Trump should engage in such speech or that his strategy to mount a political defense against the government’s case is prudent or apt to succeed. I happen to believe it will blow up on him and be turned against him at sentencing if he is convicted. But his right to speak out should not be in question.