Trump’s Gag Order Is Crafted Perfectly to Withstand a First Amendment Claim

On Tuesday, D.C. District Judge Tanya Chutkan, following a hearing on Monday, issued in writing a partial gag order in Donald Trump’s Jan. 6 prosecution.

She prohibited all parties or counsel in the case from making

In doing so, she sent three unmistakable messages to defendant Trump and the country: She is firmly committed to the orderly administration of justice; her commitment is fueled by fearlessness; and no one is above the law.

The order is elegant. She grounded the order in long-standing Supreme Court law that a trial court has a duty to “protect [its] processes from prejudicial outside interferences” and that “[t]he First Amendment does not override that obligation.” Then, she carefully focused on conduct by Trump that could reasonably be expected to increase the risk of violence to anyone in his trial process—witnesses, prosecutors, and court staff.

That alone raises the guardrail against appellate reversal on First Amendment grounds, even by this Supreme Court. In addition, she reinforced the legal permanency of the order by adding:

The judge notably avoided saying how she’d respond to comments about herself, having reportedly suggested earlier in Monday’s hearing that she wasn’t too concerned about her own safety.

What matters to the country and the administration of justice is that Chutkan refused to simply take a one-small-step-at-a-time approach. With Trump’s increasingly violent social postings about witnesses, the judge recognized that halfway measures risk a danger to our justice system—and real world threats of violence often follow Trump’s pronouncements in short order.

The threats are not hypothetical. In August, Abigail Shry, a Trump follower, was arrested for a voicemail death threat to the judge.

Last month, Trump brazenly declared that “in times gone by, the punishment would have been DEATH” for now-retired Chairman of the Joints Chief of Staff Gen. Mark Milley. Why? Because Milley dared to have a relatively standard back channel “de-confliction” conversation with the Chinese military at a time of world crisis. And Milley happens to be a key witness against Trump.

For Chutkan, the risk of simply giving Trump an escalated general warning was twofold. First, it would give Trump another one or two free strikes until she issued a formal written order. Second, the judiciary would lose authority if it looked ineffectual to the public.

Of course, now comes the hard part. As we’ve written before, Trump, by his nature and his political strategy, will feel compelled to test the limits of the order that the judge ultimately issues. In fact, he’s already testing those limits. On Tuesday in Iowa, Trump rallied supporters against Chutkan, saying the “judge doesn’t like me too much.” He added, “I am willing to go to jail if that’s what it takes.”

Trump has already filed his notice of appeal. It will not delay the trial.

A reactionary Supreme Court majority lurks in the background. They might well relish issuing a high-minded opinion waxing poetic on First Amendment principles that they will apply (or misapply) in favor of the leading Republican candidate for president. At the same time, in recent cases, the justices have seemed to be fed up with Trump’s petitions for special treatment.

In addition to clearly underscoring the areas where Trump may properly speak, Chutkan did several important things to avoid reversal.

First, her order did not include words proposed by special counsel Jack Smith that would forbid “inflammatory” or “disparaging” speech about witnesses or court personnel. An order worded too vaguely could be viewed as “chilling” speech that is protected as well as that which is not. As recently as June, both liberal and conservative justices warned against such a “chilling effect.”

Second, the order included crucial context for its central prohibition on “targeting.” Chutkan cited “undisputed testimony” showing that “when Defendant has publicly attacked individuals … those individuals are consequently threatened and harassed.” She cited in particular Trump’s recent public statements “that particular individuals are ‘liars,’ or ‘thugs,’ or deserve death.”

On that basis, the court concluded that “such statements pose a significant and immediate risk that (1) witnesses will be intimidated … by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.”

Finally, Chutkan made an undeniable point about why even social posts that are quickly deleted would violate the order: She noted that the significant and immediate risk she cited “is largely irreversible in the age of the Internet … once an individual is publicly targeted.”

These findings matter because higher courts do not lightly disturb a district court’s determination of undisputed facts. She found that “Defendant’s statements pose sufficiently grave threats to the integrity of these proceedings that cannot be addressed by alternative means” and the order has been tailored “to meet the force of those threats.” The quoted language is aimed at the Supreme Court’s requirement that restrictions on speech to protect judicial proceedings be contoured no more broadly than required to meet the threat.

Perhaps most importantly, the court moored the order in the safest harbor available—forbidding targeting anyone associated with the case from issuing what the Supreme Court has called “true threats of violence.” True threats are defined as words that “subject individuals to ‘fear of violence’ and to the many kinds of ‘disruption that fear engenders.’ ”

As recently as June, the Supreme Court ruled that such words are not protected by the First Amendment.

Even with a carefully worded order, it is predictable what Trump will do and why. His attacks on prosecutors and courts become fodder for his political fundraising.

Trump’s attacks also nourish his single-minded strategy: He appears not to worry about jeopardizing his defenses in criminal cases by ranting and by defying judges. Instead, he aims everything at energizing his electoral base to donate and turn out at the polls. He views this as his path to regain the presidency, arrange for his attorney general to end his prosecutions, and possibly to pardon himself.

Given Trump’s pattern of aggressive public counterattacks to any judicial restrictions—or even application of standard judicial rules—he will surely walk right up to the line or over it to demonstrate his defiance.

The more extreme and provocative his imagery, the more obvious it will be that Trump is violating the gag order.

On the other side of the criminal case, special counsel Jack Smith will not hesitate to move to hold Trump in contempt if he ventures over the line.

In response, Chutkan will have an array of options. She could give Trump a last warning before imposing sanctions. Or, following Monday’s pattern, she could issue an immediate order for him to show cause why he should not be held in contempt.

This would trigger briefing by the parties, and then a contempt hearing—a minitrial on the sole issue of whether the gag order has been violated in any material manner.

The hearing would turn on prosecution evidence that the very nature of Trump’s statements is an invitation and provocation to violence.

In that event, if the facts were to support a contempt finding by a preponderance of the evidence, the court should carefully calibrate a remedy that would send a major deterrent message to Trump—and to the country—about the rule of law. Stiff monetary fines, doubling with any further violations, are one example.

Whatever the course of coming events in Chutkan’s courtroom, here’s what we can count on: She is not one to be intimidated—or to slow rulings that demonstrate that no one is above the law.