Judge Chutkan imposes partial gag order on Trump. But silencing a defendant isn't a good thing.

“In what kind of case do you think it would be appropriate for a criminal defendant to call the prosecutor a thug and stay on the streets?” U.S. District Judge Tanya Chutkan asked Donald Trump's attorney John Lauro on Monday during a hearing on whether the former president’s speech should be restricted.

Lauro didn’t provide the correct answer, which is this: all of them.

Although it doesn’t appear to be a common occurrence – there’s only one published instance where a defendant allegedly admitted to calling the U.S. attorney assigned to his case names – this happens often enough. Criminal defendants have just as much disdain for prosecutors as the prosecutors have for them. Their displeasure is expressed outside of court. The only difference with Trump’s calling special counsel Jack Smith a thug is that no one was listening when these other defendants insulted their prosecutors.

Talking smack is part of the game. To suggest that it doesn’t happen is not only disingenuous on Judge Chutkan’s part, it’s also a misunderstanding of the importance of the defendant’s voice in criminal cases – one that could prove unconstitutional. It’s almost like the former public defender doesn’t understand defense.

Does the partial gag order violate Trump's rights?

A defendant’s rights may be in tension with the First Amendment rights of the news media, but that’s not what’s happening with the former president. This isn’t even a situation where a lawyer’s speech is restrained. That has happened in the past on occasion, such as the gag order in the trial of the Los Angeles police officers accused of beating Rodney King. Those are the two situations that courts have reviewed in the past, but telling a defendant he can’t speak is unprecedented.

In the federal election conspiracy case against Trump – he could be facing 55 years in prison if convicted and sentenced to the maximum on each of the four conspiracy and obstruction charges – what Chutkan did was the inverse of a Fifth Amendment violation.

If the judge had compelled Trump to speak somehow, that would be a clear violation of his right not to incriminate himself – namely, to keep himself un-convicted and free. Yet, when he wants to say something that he thinks would keep himself un-convicted and free, she’s stepping on that right.

Judge issues partial gag order: Trump, who never shuts up, now has a gag order to whine about. And you know he will.

While for some it might be wise not to testify in one’s own defense, some studies suggest an acquittal is more likely when a defendant tells their story.

Even if taking the witness stand in one’s own criminal case is ill-advised, defendants can't legally be stopped from speaking to protect themselves. The Supreme Court has held that preventing someone from testifying in court in a case against themselves violates the due process clause of the 14th Amendment and the compulsory process clause of the Sixth Amendment.

Gag order played a role in O.J. Simpson trials

There have been very few studies of the First Amendment’s role in criminal courtrooms. One, authored by George Washington University Law School professor Daniel Solove, examines the ways that the First Amendment operates with the Fourth and Fifth Amendments and how government searches of suspects’ intellectual property deserves more attention.

In the article, Solove argued that the First Amendment doesn’t get enough consideration in criminal courtrooms but, notably, doesn’t even mention a case of a court telling a defendant not to speak. It’s practically unthinkable.

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Because criminal cases threaten an individual’s freedom and possibly life, courts have to give a defendant more leeway in speech. That’s why in People v. O.J. Simpson, there were no gag orders in the criminal case under former Superior Court Judge Lance Ito – Ito floated the idea but never followed through on it.

However, the judge assigned to the subsequent civil case filed by Ron Goldman’s family restricted speech of the parties in what has been called a “sweeping” order. All that was at stake in those civil proceedings was civil liability – i.e., money.

Chutkan’s – and the public’s – inability to equalize the First and Fifth Amendments as they pertain to criminal defendants shows just how hard it is to convince people that every accused person is innocent – until they’re convicted and they may be actually innocent after that, too. If there’s a defense to be made, there’s no reason why the defendant shouldn’t be able to speak it. In fact, for people whose freedom is jeopardized, the right to speak becomes even more important.

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The judge was correct when she said that the former president “does not have the right to say and do exactly what he pleases.” He doesn’t. He can’t threaten people.

And laws exist to cover that. They’re in the criminal code of every state and the federal government, and if law enforcement thinks Trump violated those statutes then he should be charged as anyone else would be.

The constitutional fallout of Chutkan’s partial gag order is yet to be seen; Trump has said that he’ll appeal it before the case is over.

Stopping him from speaking is stopping him from defending himself, and that’s something no judge presiding over a criminal case should ever be allowed to do.

Chandra Bozelko is a 2023 Harry Frank Guggenheim Criminal Justice Reporting Fellow at the John Jay College of Criminal Justice.

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This article originally appeared on USA TODAY: Trump's partial gag order may violate his right to defend himself