U.S. District Judge Tanya S. Chutkan is very generous. In her gag order against Donald Trump in the January 6 case, she allowed that the former president and leading candidate for the Republican nomination in 2024 can still criticize the Biden administration “generally” and his GOP rivals for their “campaign platforms or policies.”
That the judge felt it necessary to include that proviso in her order tells you all you need to know about her ill-advised, quite possibly unconstitutional attempt to police Trump’s speech about the case. It goes far further than necessary to protect against speech targeting non-public figures such as court clerks or jurors.
Shut up, she explained.
The prosecution against Trump is unavoidably political. Everything from the 2020 election, Trump’s conduct in its aftermath, and his prosecution is a matter of intense political debate. The case itself involves the sitting president’s administration prosecuting his potential opponent over the endgame of their prior election contest. The topic of the trial was already the subject of widely publicized congressional hearings held by the president’s party in the city where the trial will be held, and was the centerpiece of that party’s multi-million-dollar TV ad campaigns throughout 2022. But now Trump — but not Biden — is to be gagged.
To limit what he says about the case necessarily involves drawing arbitrary lines regarding what a political figure can say about a politically relevant matter.
No judge should go there, even if Trump’s statements are, true to form, careless, stupid, and incendiary. Not only is free speech his right — it is the right of voters in the forthcoming primary and general elections to hear it before choosing the nation’s next president. Whatever one thinks of the substance, the argument that the “deep state” is out to get him is a central part of his campaign.
In barring Trump from criticizing Special Counsel Jack Smith and possible witnesses and the substance of their testimony, Chutkan said that Trump is encouraging violence and endangering the integrity of the proceedings. It’s true, of course, that Trump’s language is harsh and insulting; that doesn’t mean it’s tantamount to incitement to violence. As for the integrity of the proceedings, are we really supposed to worry that Trump’s ravings are poisoning the jury pool . . . in Washington, D.C.? Are we supposed to indulge the pretense that Democrats and the press will, in the interim, adhere to monastic silence about January 6, the charges, and Trump’s culpability?
Trump shouldn’t be calling Jack Smith “a thug,” but it is entirely reasonable to believe that Smith has a political agenda, and the defendant should be able to say that. Criticizing special counsels, by the way, is what the targets of special counsels always do. Just imagine how different history would have been if Bill Clinton and his White House had been ordered by a conservative judge not to criticize Kenneth Starr.
Since many of the witnesses against Trump are themselves political players whose testimony has political salience, it makes no sense to prohibit Trump from discussing them. One of those witnesses will likely be Mike Pence, who is running against Trump for the GOP nomination. Chutkan says Trump can criticize Pence’s platform or policies — thank you, judge — but not his contentions about January 6, even though they are central to the political dispute between the two men.
That’s crazy, even if you believe, as we do, that Mike Pence was completely right on that day and Donald Trump appallingly wrong.
In short, Chutkan’s order is unsustainable and shouldn’t stand.