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Kaelan Deese, Supreme Court Reporter


NextImg:What Trump can and can't say now that he's under a gag order in criminal court

Former President Donald Trump was ordered to exercise more caution with his rhetoric after a federal judge overseeing his criminal 2020 election subversion case applied a narrow gag order at the government's request.

U.S. District Judge Chanya Chutkan in Washington, D.C., sided with special counsel Jack Smith's team of prosecutors Monday by prohibiting Trump from making public statements attacking prosecutors, court staff, and potential trial witnesses. The former president used his 2024 election campaign stop in Iowa later that afternoon to test its limits, saying the judge's "whole life is not liking me."

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"The judge doesn't like me too much. Her whole life is not liking me, but she gave a gag order," Trump said, claiming it means "you can't speak badly about your opponent."

Bradley Moss, an attorney specializing in national security law, posted to the site formerly known as Twitter that Trump's comment "does not appear to violate the gag order," and Chutkan said during the hearing that he maintains a right to declare he's being unfairly prosecuted.

“Mr. Trump can certainly claim he’s being unfairly prosecuted, but I cannot imagine any other case where a defendant is allowed to call the prosecution ‘deranged,’ a ‘thug’ or anything else,” Chutkan said, offering quotations from past Trump remarks to illustrate her point.

The ruling came from the bench around two hours into a hearing in which prosecutors made their case that restrictions were needed on Trump's rhetoric to prevent intimidating witnesses. Chutkan indicated that a written decision would be forthcoming but noted any violation of the order could lead to immediate punitive sanctions.

"From what we understand of the scope of the gag order, comments critiquing the judge, in and of itself, is not out of bounds," Moss told the Washington Examiner. "The judge will still allow Mr. Trump to engage in a wide range of political rhetoric, but he can no longer use inflammatory rhetoric when referring specifically to DOJ personnel, court personnel, or witnesses."

Former President Donald Trump speaks during a commit to caucus rally, Monday, Oct. 16, 2023, in Adel, Iowa.

Chutkan isolated Trump's past inflammatory comments into five categories: the trial venire in the District of Columbia, the Biden administration and the Department of Justice, lead prosecutors and their staff, the judge and her staff, and people who may eventually be called to testify. Her decision was at least partially informed by a narrow gag order given to Trump in his civil business fraud trial in New York earlier this month.

Although a written order has yet to clearly lay out the gag order parameters, Chutkan's guidance from the bench suggested she would not restrict Trump from disparaging the trial venue because biased jurors could be filtered out during the selection process. She also said she would not be barring Trump from criticizing the government because it would be within the scope of political speech, a point which prosecutors also agreed.

Senior assistant special counsel Molly Gaston said Monday that Trump can still "criticize President Biden to his heart’s content," noting that "President Biden has nothing to do with this case."

And while the same restrictions also apply to Trump's campaign, a spokesperson on Monday utilized the narrow exceptions to declare "today’s decision is an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden."

Andrew Lieb of Lieb at Law told the Washington Examiner the only way around the new gag order is likely through the messaging of political action committees, noting they can "say anything they want as they can't coordinate with the campaign."

But Vermont Law School professor Jared Carter noted that Trump could seek to benefit politically if he dares to break the judge's orders, arguing, "Trump wants a gag order."

"He wants a gag order so he can break it and claim martyrdom when there's perhaps some enforcement of that gag order," Carter said, noting Trump's four indictments that have gone along with his rise to a significant lead among Republican primary candidates.

Trump vowed on Monday to appeal the gag order in a post on Truth Social and later blasted the ruling at his Iowa campaign stop.

“We’ll appeal it and we’ll see. But it’s so unconstitutional. The good thing is we have so much support. It’s incredible,” he said.

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Lieb also suggested that Trump may not get relief from an appellate court because it intended to protect the "administration of justice" and protect the institution of the courts, noting that many appellate court judges are institutionalists.

"I'd bet that we'd have to see Trump violate the order and have a disproportionate sanction issued for an appellate court to do anything," Lieb added.