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It’s exasperating to watch the American legal system bend over backward to protect a lawless man committed to its destruction, but here we are.
Last week, the D.C. Court of Appeals heard oral arguments on the proper scope of Donald Trump’s gag order in the 2020 election fraud case. Whatever they decide, their opinion will be sorely tested as the trial proceeds through jury selection, evidentiary rulings and closing arguments sure to enrage an already incendiary defendant with no impulse control.
Trump, whose unparalleled dominance of right-wing media and fact-challenged fans yields a menacing threat, is flexing to dismantle the rule of law rather than submit to it. Lacking a viable legal defense to multiple prosecutions for business and tax fraud, hush money campaign fraud, “find-me-eleven-thousand-votes” conspiracy fraud and “Hang Mike Pence” fake elector fraud, Trump’s brazen strategy is to skip all substance and go straight for the jugular of judicial authority itself.
Anyone paying close attention is getting an extraordinary civics lesson wrought from a perilous chapter in American history.
The legal theory behind gag orders
To the trial bar, a gag order presents a simple intersection between two common interests: the rule of law and free speech.
Gag orders preserve fair trials by making sure witnesses, jurors and prospective jurors are not intimidated or frightened into silence (or perjury). Such orders often run up against the First Amendment, because they limit speech and communication for the duration of a trial, which can last many months.
Trump’s particular case is without precedent because of his vitriolic attacks and his status as a defeated president re-seeking the presidency. Most defendants are counseled by their defense lawyers to keep quiet; they certainly don’t go out of their way to attack the rule of law or the judge presiding over their case. Not so with Trump, who openly encourages political violence and routinely attacks prosecutors, judges, staff, witnesses and the American legal system itself.
In the election fraud case, Trump has made nonstop references to Special Counsel Jack Smith — “Deranged Jack Smith” and “Smith’s team of Thugs.” Trump’s public promise that “IF YOU GO AFTER ME, I’M COMING AFTER YOU,” and his salivating reverence for putting officials to death alongside petty shoplifters, have infused domestic politics with a sinister threat of violence, a threat now deemed acceptable to a substantial percentage of Republican voters.
Using plausible deniability as a weapon
Public speech meant to intimidate witnesses or influence their testimony is simply not protected speech. Under federal law at 18 U.S. Code § 1512, Obstruction of Justice, whoever uses the threat of physical force with intent to influence witness testimony in an official proceeding can be imprisoned — up to 20 years.
Although Trump attacks his legal opponents to amplify his fundraising, with the ultimate goal of rendering the rule of law irrelevant if he is re-elected, trials are not like political elections to be won through manipulation and spectacle. First Amendment protection generally yields at the point where speech intimidates or incites violence, criminal acts or a riot.
During appellate argument on Judge Tanya Chutkan’s gag order, Trump’s lawyers advanced a free-for-all absolutist view, one that would allow Trump to walk a tightrope adjacent to the line of inciting violence, just like his “fight like hell or you’re not going to have a country anymore” Jan. 6 speech on the Ellipse.
As his theory seems to go, Trump could obliquely encourage MAGA to burn down a witness’s house while he sleeps, without using those exact words. If the house remains un-charred the next morning, Trump’s speech is protected under the First Amendment because 1. He didn’t explicitly mention arson and 2. The possibility of future violence is too remote.
As the prosecution put it, “(Trump)… well knows that by publicly targeting perceived adversaries with inflammatory language, he can maintain a patina of plausible deniability while ensuring the desired results.”
What passes for substance on Fox is no more than a platitude
Trump’s relentless attacks against the Department of Justice and Jack Smith’s “thugs” fall under the rubric of political speech because Smith was appointed special counsel by an attorney general serving under Joe Biden’s presidency. No factual nexus or evidence linking Smith’s decisions to Biden is needed; Trump’s right-wing echo chamber feeds on insinuating headlines alone.
Trump’s alleged political speech is clearly intended to delegitimize the legal system itself, as he campaigns on an overt promise to weaponize the rule of law and seek revenge. Judge Patricia Millett, who served on the gag order appeals panel, told defense counsel that labeling Trump’s attacks as “core political speech” begs the question of whether it is both political speech and speech “aimed at derailing or corrupting the criminal justice process.”
In other words, Trump’s counsel’s constant refrain of “core political speech protected by the First Amendment” is circular and empty, like using a word in a sentence to define what that word means.
Trump wasn’t gagged in a vacuum
Contrary to his self-perpetuated martyrdom, Trump has a long history of hiding behind a weaponized Firstst Amendment.
During his first impeachment for his attempt to hijack funds approved for Ukraine until President Volodymyr Zelensky “found” dirt on Joe Biden, Trump threatened the source of information about the incident. Trump said in a speech that whoever had leaked the information about his discussion with Zelensky was like a spy, and that “in the old days” spies were “dealt with differently.”
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Threatening anyone who dared to spill was attempted intimidation, plain to see, a pattern Trump has continued.
When he recently learned that key witness and former chief of staff Mark Meadows had been granted immunity in his election fraud case, Trump publicly signaled to Meadows that witnesses who hurt him were weaklings, cowards and enemies of the nation. After previously referring to Meadows as a “great chief of staff — as good as it gets,” Trump now fears him, and is hedging his bets.
Chutkan saw Trump’s post as a clear attempt to influence Meadows, while proving the necessity of her gag order in the first place.
Threats of violence hit their mark
Prior to the Meadows post, Chutkan heard undisputed testimony that Trump’s public statements about other individuals had led to threats and harassment against them, which Trump’s counsel called “totally irrelevant.”
There’s nothing more relevant to a witness than his life and his family’s safety, and there’s nothing more important to the administration of justice than witnesses unafraid to tell the truth.
Desperate to move his legal battles to the more easily manipulated court of public opinion, Trump characteristically called Chutkan’s gag order “another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden, who was granted the right to muzzle his political opponent…”
For now, the gag order remains on hold while the appellate court examines its scope. Whatever the outcome, the tension between Trump’s free speech and the rule of law will likely be appealed again and settled by the Supreme Court.
Weaponizing the First Amendment in unprecedented ways, Trump has transformed a venerated legal shield into a lethal sword that threatens democracy itself.
The painful civics lesson from this saga, likely to get worse before it gets better, is that the United States is just as vulnerable, just as susceptible as any other nation in the world, to the evil march of fascism.
In that regard, Trump is teaching us a valuable lesson: the U.S. is not exceptional after all.