The Gag Order That Finally Got Donald Trump to Shut Up

This past week, Donald Trump was fined for violating a gag order put in place to stop him from targeting court personnel in the New York civil fraud trial against the Trump Organization. Trump then took the witness stand to say he had really been referring to Michael Cohen, his former attorney and the testifying witness, when he said that the person sitting “alongside” Judge Arthur Engoron was “very partisan,” not the court clerk he was being fined for targeting. But Engoron ruled that Trump was not a credible witness, that Trump’s statements were in reference to a court clerk he had previously targeted, and that Trump owed the court $10,000 on top of a previous $5,000 fine for violating the same order.

In Washington, in one of Trump’s four criminal cases, meanwhile, prosecutors and defense attorneys battled over whether Judge Tanya Chutkan should bring back a gag order she previously imposed on Trump barring him from targeting witnesses in the case. Since the gag order was temporarily stayed, Trump has spoken out against possible witnesses Sidney Powell and Mark Meadows. [Editor’s note: This gag order was reinstated on Monday morning.]

On this week’s Amicus, recorded before the gag order was reinstated, Dahlia Lithwick and Jeremy Stahl discussed the fallout from Trump’s various gag orders, the wisdom of issuing such orders in light of Trump’s First Amendment rights, and whether it’s even possible to gag Trump. This conversation has been edited and condensed for clarity.

Dahlia Lithwick: Let’s turn to New York for a second just because, as high Shakespeare goes this week, we’ve got: Michael Cohen being called out as a liar. We have Alina Habba doing whatever it is that Alina Habba does. We’ve got threats against the judge’s clerk that is sanctioned, and then this just whack-a-doodle No, we weren’t threatening her; we were threatening Michael Cohen [testimony].

The two things I’m super focused on as we think on this show about stakes, not horse race: One, there is, I think, an argument that has been surfaced that this [case] really hurts Trump, and it hurts Trump because he is really shown to be a liar about the thing that matters, which is [that he is a] successful mogul, billionaire, master of the universe.

The other kind of related piece of this for me—and I think you and I have both written versions of this—is, it just shrinks Trump down to, like, a little boy in the principal’s office. It’s one thing when he’s standing in the halls and running his mouth, but when he’s in that courtroom and he’s just being pretty consistently bopped on the face with the rolled-up newspaper, it just makes him small.

Jeremy Stahl: I think it’s the courts working. It’s hard to say how that actually plays in the democratic space and the electoral space, because there’s no cameras of this. It’s all secondhand reporting. There’s no video of each individual time Judge Arthur Engoron goes bop or boop or whatever. What it does, though, is it clearly irritates him. It clearly gets under his skin.

It threatens his, not just his ego, standing, position, but also the business empire itself. Like, there’s money at stake for him. There’s licensing agreements and the ability to have his name on Trump Tower and vast sums of money at stake. And he’s acting out as one would expect of the misbehaving principal’s office brat.

But also, he is being brought into line. And you saw that with the second fine over a second violation of a gag order in which the judge determined that he was, again, talking about the judge’s clerk after being warned not to and told specifically, “You cannot talk about court personnel.” He went on the stand and he denied it, and normally he owns things like this, [saying], “Yes, I was talking about that person.”

He went on the stand and he denied that he was talking about court personnel. He said, “I was talking about Michael Cohen when I was making that statement about the person sitting next to you,” and the judge was like, “Not credible. I don’t think you’re a credible witness. Pay the court $10,000. You’re fined.”

He sat back down. Later, he had another outburst moment, reportedly, where he stormed out of the courtroom when the judge rejected a request for immediate dismissal of the case because of contradictions in Michael Cohen’s testimony. And so he’s not happy. He’s certainly not happy.

Right. So this is the Venn diagram where, it’s not overlapping with democratic institutions’ holding. It’s just straight-up schadenfreude, right? Overlapping with—I mean, watching him suffer is, in some sense, its own reward, yeah?

I mean, if he did all the things that Tish James said he did, this is how the system should have been working all along. This is what should have happened many years ago, and in some ways, we might not be in this mess if, when New York District Attorney Cy Vance, many, many years ago, investigated things like this.

If all of these allegations are true and a judge has already reached summary judgment to say one of them, one of the major ones, is true, then … well, this is what should have been happening all along.

So, let’s talk about the gag orders. You’ve brought them up a couple of times. This is a sort of classic First Amendment nightmare where you’re gagging the guy who is running for president and says this is pure First Amendment–protected speech. And at the same time, he’s terrorizing court personnel, and witnesses, and Jack Smith, and the judges.

Can you give us a sense of how these judges are trying to walk that line, that First Amendment line? And I think—you can sell the chandelier in the bathroom at Mar-a-Lago and come up with these fines, right? So does it matter?

This is just the thorniest of the problems in terms of Trump being in these courtrooms and being held accountable by the legal system. He is incapable of shutting his mouth. He is incapable of not trying to intimidate those whom he perceives as enemies, and in this case witnesses. Or court personnel, as happened in Judge Engoron’s courtroom when he put a Truth Social post out making deranged allegations about a court clerk and continued to do so, according to the judge in that case. Basically, he has to be stopped and he can’t be stopped.

And I am a little bit more optimistic than that. Before I get into my optimism, I’ll say you also have very legitimate First Amendment questions about a candidate for president and somebody who says he needs to be able to mount a defense of himself in the court of public opinion as he runs for the presidency, and the ACLU this week specifically came out on Trump’s behalf on that question and said, “The gag order in Judge Tanya Chutkan’s courtroom was too vague, it was too broad, and Trump needs to be able to defend himself.” Which, OK.

My optimistic version of that is that these can work. They can be narrow and they can work. You can see in Judge Engoron’s courtroom just how, again, small [Trump] looked when he was up. He wants to go up to the line and test it as much as possible, but he doesn’t want to be shown to be crossing the line. His whole plausible deniability around whether or not he violated that court order to not talk about court personnel shows that he can be boxed in here, I think.

The other thing that shows that he can be boxed in here is that last week, Sidney Powell pled guilty on Thursday. Then Kenneth Chesebro pled guilty on Friday. Over the weekend, Trump did not Truth Social post one word about either of those potential witnesses in his case. He did not because there was a gag order in effect. D.C. Judge Tanya Chutkan had her gag order, in effect saying, You cannot target witnesses.

And you know what? He didn’t. He didn’t say anything. Monday or Tuesday, she lifted the order for an administrative stay pending consideration of the question of whether to stay pending appeal. And immediately he started posting about Sidney Powell, saying, I don’t know her, basically. So, like … I think that there is a world in which narrow, targeted efforts to protect the system of the courts and the system of justice that would happen in any other case to any other defendant can work for Donald Trump, and maybe that’s going to be the most foolish thing I say on this podcast, and he’s gonna just show how he can blow the whole thing up.

But the fact that he kind of was mute before this administrative stay of this gag order happened sort of demonstrates the point a little bit.

I mean, it raises questions for those of us who fear sort of generalized stochastic terror, right? That, you know, these are such incendiary posts, like: Mark Milley should be executed.

These posts, in some sense, just create and foment generalized “take up arms” mayhem that is separate and apart from protecting court personnel. But I absolutely take your point that these judges are not responsible for stochastic terror. They’re responsible for making sure that court employees, and judges, and prosecutors can get into their car in the parking lot.