Twice Gagged

 

Monday, Judge Chutkan entered a limited restraining order that will apply to all parties in the special counsel’s election interference case, but mostly, to Donald Trump. There is no written order yet, but she ruled from the bench, so we know the broad contours of her order. Judge Chutkan adopted the government’s view that the First Amendment can, in appropriate cases, yield to the administration of justice and the need to protect witnesses. In a narrowly tailored order, the Judge prohibited any party, but of course, mostly Trump, from posting or reposting attacks against anyone on the special counsel’s team, as well as court personnel. While it permits Trump, who has attacked the criminal justice process, the people involved in it, and witnesses, to make statements about President Biden, his administration, DOJ, the government and so on, he cannot vilify or incite violence against public officials. Calling prosecutors “deranged” or “thugs” is now off the table. Trump is also prohibited from making statements about witnesses or the substance of their testimony. This may prove to be the hardest part for him. Comments like the ones he’s made recently about General Milley and many others in the past would ring this bell. But the “biased, Trump-hating Judge,” (his past words) gave Trump broad latitude to continue to engage in political speech. And he’s been doing that ever since the hearing ended, using the gag order to fundraise. He blames the “BIDEN ADMINISTRATION” for gagging “ME,” but says they will never be able to gag the American people in one appeal to send him money. Trump conflates the order put in place by an independent federal judge—that’s the whole point of life tenure—with action taken by the Biden administration. As former head of government, he knows full well that the president doesn’t direct judge’s rulings in cases. It’s a deliberate move on his part to misinform people. But Judge Chutkan’s order permits him to, and she’s correct to do that. Candidate Trump has First Amendment rights to engage in political speech, and slicing the divide between that and impermissible criticism related to the prosecution too finely would be asking for trouble. Even though Judge Chutkan’s restraint is legally laudable, Trump’s constant onslaught of lies about how government works is a fraud being committed on the public. His false claims that the Judge is a tool of the Biden Administration are made to warp public opinion and, of course, to raise money for Trump. Trump lies to the public. Everyone knows he’s lying. But no one on the Republican side of the aisle will stand up and say so. There is no one actively trying to bring the truth to people who have fallen under Trump’s spell. If you know any of them, you know how insistent they are that he’s right, that everyone is out to get him. He’s their protector. He will make sure that the Biden Administration never gags them—whatever that means. Every new instance where authorities disclose Trump’s bad conduct or criminal conduct is labeled a “witch hunt.” Oh—and please make a contribution to prove your loyalty. Trump proves anew, every day, that he is unfit for public office. But because he is so audacious, at least until now, he has gotten away with it. The question is, when does it end? Not just an indictment here or a gag order there, although those are important milestones—when will Trump finally be held accountable? That’s still unclear, which is something that I know weighs heavily on each and every one of us. The question of whether Trump could return to office—with dire consequences for the future of the country and for our rights and liberty—hangs over us in this moment. Could accountability start with this gag order? The consequences of violating it aren’t yet clear. But Judge Chutkan says that if Trump does, she will entertain motions from the parties about the consequences. She doesn’t, however, limit herself to what the parties ask her to do. She told them from the bench today that she may consider, “sua sponte”—on her own accord—the appropriate sanctions to impose. That could be the find out part here. How long do you think Trump can go without violating the order, and how do you think he’ll do it if he does? I don’t mean to be cavalier about such a serious matter, but it seems unlikely to me that he can stay the course.   Judge Chutkan ended the hearing by saying of Trump’s ongoing falsehoods and threats, “no other criminal defendant would be allowed to do so and I’m not going to allow it in this case.” That’s her line in the sand. Trump has said he will appeal the order. He called it “so unconstitutional.” But as of tonight, it applies to him and a violation will have consequences, according to the Judge who has the ability to impose them. We’re in this together, Joyce Vance