Legally, there is no constitutional basis for a gag order. Politically, gagging Trump is the last thing Democrats should be doing.
For a country facing a plethora of serious challenges (go back and read Jim’s Jolts from this week to see what I mean), we sure spend goo-gobs of time on idiocy.
Which brings me, of course, to the latest round of Smith vs. Trump – the Biden Justice Department special counsel squaring off against the former president and de facto GOP presidential nominee, whom Smith has indicted twice, strategically timed to push for multi-month trials in the run-up to the election (while telling the Supreme Court not to worry because the Justice Department would never, ever engage in politicized law-enforcement).
Smith’s latest is an effort to one-up Trump on the absurdity meter: The federal prosecutor wants the court to issue an unconstitutional gag order to stifle the former American president’s appalling but lawful claims that his successor and 2024 election opponent was hoping to get federal law-enforcement officers to rub him out.
As I discussed in “Lethal Farce” earlier this week, Trump went on a lunatic rant about the utterly unremarkable fact that the FBI followed its standard operating procedures in executing a search warrant at Mar-a-Lago – said procedures including guidance on the FBI’s use-of-force rules which, necessarily, address the narrow conditions under which agents are permitted to use deadly force. Not only is this routine and necessary for legal and security reasons; the purpose is to reduce the chance that armed law-enforcement agents will resort to lethal force unless it is absolutely necessary. (When’s the last time you heard about even a violent criminal suspect being killed during the FBI’s execution of a court-authorized search? In the little checking I’ve done, I’ve found it’s a lot easier to locate reporting about agents killed in these circumstances – a tragic fact that is unsurprising because carrying out compulsory entries and searches at the premises of suspected criminals is inherently dangerous.)
Moreover, there is reason to believe that the FBI only reluctantly carried out the Mar-a-Lago search at the Justice Department’s direction – prosecutors’ patience having been exhausted by Trump’s months of obstructive tactics even after the issuance of a grand jury subpoena. By law, the government has ten days to execute a warrant once it is issued, and the FBI used that period to ensure that the search took place on a day when it was known Trump would not be on the premises. He was never in any danger.
I have no doubt that Smith and the FBI truly are upset about Trump’s baseless claims that the routine inclusion of standard use-of-force guidance shows that “Joe Biden was locked & loaded to take me out & put my family in danger.” Such slanders annoy me, too, notwithstanding that I haven’t been a prosecutor for many years, I no longer work closely with the overwhelmingly terrific men and women of the FBI, and I have always found Biden to be a jackass.
Nevertheless, Trump’s outburst is protected speech. Smith knows that. What Trump said was imbecilic and irresponsible, but it was not incitement. Trump didn’t direct anyone to do anything, much less anything violent or otherwise criminal.
It is a Democratic political narrative – one Smith has an interest in promoting for purposes of his election-interference case against Trump – that even though Trump’s provocative comments do not meet the legal test of incitement, they are dog-whistles that inspire his more rabid followers to commit acts of violence. (Naturally, the same Democrats will tell you that “from the River to the Sea” is protected political speech, even when chanted by open supporters of Hamas, a designated foreign terrorist organization.)
Yet, the happenstance that people looking for an excuse to make mayhem might react irrationally to speech that is irresponsible but does not call for violence is not a constitutionally valid basis to impose a prior restraint. That would be true even if Trump were not a major-party candidate for the presidency, the restriction of whose speech would raise other constitutional concerns.
All that aside, I don’t understand Democrats. Trump has a following that is titillated – I said titillated, not incited – by these outbursts. For the vast majority of the electorate, to the contrary, they are a reminder of everything people found afflictive about Trump’s presidency. They are a reminder of why, even for people who liked Trump’s advisers and were generally supportive of his policies, Trump himself – the person and the persona – was too much to abide.
Those are the voters who, with faded memories of 2017-21, are right now considering whether Biden’s awful presidency and patent inability to do the job make Trump a viable option.
In the 2020 campaign, most of those who cast ballots for the winning candidate did not vote for Biden; they voted against Trump. That’s why it was prudent to keep Biden in his basement and just let Trump have the spotlight to himself – just let him talk. It’s harder to hide Biden now since the presidency is always in the spotlight, and so, unavoidably, is his unfitness for it. If I were Democrats, I’d figure my best shot at holding power is letting Trump be Trump, not gagging him.