A Donald Trump Gag Order Would Be a Test for the Justice System

The ultimate punishment for former President Donald Trump is to treat him like every other defendant. And that includes being gagged when he endangers witnesses or the judicial process.

Two judges recently imposed gag orders on Trump after he repeatedly made attacks on prosecutors, the judges, court staff, and potential witnesses.

Many commentators suggest there could be no greater impingement on the First Amendment than restricting the speech of both a candidate for office and a criminal defendant.

But an important test of our justice system is that it works even in extraordinary circumstances. We saw the failure to meet that standard when the George W. Bush administration created a prison system—and attempted to have a new trial system—for terrorists captured on the battlefield. We should not do the same thing for Trump.

We have to be at least as good as Peru, which has so many jailed ex-presidents that it has run out of room in its VIP prison, specially made for such miscreants. That includes, tellingly, former President Pedro Castillo, who was imprisoned for trying to dissolve congress and rule by decree.

The rule of law tells us no person is above the law, so no person should be above standard judicial procedure either.

A gag order (or non-dissemination order) may seem like a core interference with the First Amendment right to free speech, and an especially worrisome one because the First Amendment is most protective against “prior restraint”—banning speech in advance rather than punishing it subsequently.

But every right in the Constitution must be balanced against others. Gag orders are often justified by the Sixth Amendment right to a fair trial process, which includes the right to be judged by an impartial jury. A fair trial could be undermined by revelation of information, especially in high-profile cases such as the four criminal indictments and multiple civil suits against the ex-president.

More generally, a judge must consider the proper working of the judicial system, guaranteed by Article 3 of the Constitution. That requires courts to prevent intimidation of witnesses and harassment of court employees that could hamper court proceedings.

In the federal Jan. 6 insurrection conspiracy case against Trump, Judge Tanya Chutkan endured attacks of allegedly being “very biased” and “unfair,” leading to threats to her life from Trump supporters. She now has to be attended by US marshals on her way to work.

Yet the judge imposed a quite limited gag order on Trump, only prohibiting attacks on Department of Justice prosecutors, potential witnesses, and court staff. She noted that Trump has attacked those involved in the criminal justice system, calling them “liars,” and “thugs” who “deserve death.” These comments, she ruled, pose significant and immediate risks that witnesses will be intimidated and that court staff and others will become “targets for threats and harassment.”

Likewise, in the New York civil fraud trial currently underway, Judge Arthur Engoron ignored multiple attacks on himself, such as Trump calling him a “rogue judge, a Trump hater” and saying unironically that the judge ought to be criminally charged for election interference.

But Engoron, too, eventually acted, barring Trump from posting or speaking publicly about the judge’s staff, after Trump attacked his law clerk, suggesting without any basis she was having an affair with Sen. Charles Schumer (D-N.Y.) and was “screaming in his ear” of the judge to go after Trump.

In her gag order, Chutkan summed up the issue well: “The bottom line is that equal justice under law requires the equal treatment of criminal defendants; Defendant’s presidential candidacy cannot excuse statements that would otherwise intolerably jeopardize these proceedings.”

That doesn’t mean there aren’t difficult issues to deal with.

In assessing whether a gag order should be imposed, a judge must consider three factors: the likely harm of the statements, how likely the statements are to be disseminated, and the likely success of the gag order.

Trump’s behavior makes the first two factors clear and establishes the compelling government interest that justifies restricting his speech. But Trump being Trump, the third factor creates a real difficulty for judges trying to protect their staff and the judicial process.

In the New York case, Trump has already disobeyed the judge’s order: despite promises by attorneys, the post stayed up for weeks, and the judge said it was a blatant violation. Trump’s attorneys apologized and said it was an oversight—a wise move on their part, as attorneys can be punished for defying such orders, including facing disciplinary review.

Trump, too, theoretically faces serious penalties for disobeying the orders. The judge could hold him in civil or criminal contempt of court, and impose punishment anywhere from a fine to more restrictive bail terms or even jail time.

But no judge is likely to impose jail time on Trump, for the very reason that Trump’s violations are problematic: no right-thinking judge would want to prompt the sort of hysteria and violence of Trump’s supporters that was seen on Jan. 6.

Instead, Chutkan came up with a clever punishment: she threatened to bring his case forward if he keeps misbehaving. Such a decision is unchallengeable and hits Trump in the right currency, as he is doing everything he can to delay his trials until after the election.

But even that solution has its limits. That trial is set for March 4, 2024, and there’s a practical constraint on the extent to which it can be brought forward.

Chutkan was also wise when making clear that Trump’s First Amendment rights were being protected as much as possible. She spelled out that he could still criticize the government and claim the prosecution was politically motivated. Chutkan even specified that he could criticize potential witness and political rival, former Vice President Mike Pence—but only as pertains to his campaign platforms and policies.

That Trump is exceptional in his wealth, influence, and capacity to provoke violence shouldn’t mean he is treated differently by the law.

Trump claims he’s being treated differently to everyone else in being prosecuted. Courts now have the capacity to show that he’s like every other criminal defendant.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Tonja Jacobi is professor of law and Sam Nunn Chair in Ethics and Professionalism at Emory University School of Law, where she specializes in Supreme Court judicial behavior and public law.