Tanya Chutkan's Gag Order on Trump

Her decision to partially muzzle the former president is nonsensical and arguably unconstitutional.

Former president Donald Trump speaks to the media as he attends a Manhattan courthouse trial in a civil fraud case in New York City, October 17, 2023. | Andrew Kelly/Reuters

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Another precedent-setting event related to the criminal prosecution of Trump happened this week. U.S. District Judge Tanya Chutkan, seemingly intent on confirming that her bias against the former president should disqualify her from presiding over a criminal case against him, reimposed a limited gag order banning the likely Republican nominee from making public statements that target special counsel Jack Smith, the prosecutor in the January 6 case, “any other court personnel,” and “any reasonably foreseeable witness or the substance of their testimony.”

You know it’s bad when even the ACLU says the order is so overbroad and vague that the “Defendant cannot possibly know what he is permitted to say, and what he is not.”

Chutkan is the Obama appointee to the federal district court in Washington, D.C., who is assigned to the 2020 election-tampering case brought by Jack Smith, the Biden Justice Department special counsel. In imposing the limited gag order in an oral ruling from the bench, she stated that Trump “cannot say and do whatever he wants,” and rattled off some of Trump’s comments that she — based on her interpretation — found offensive.

Julie Kelly, an independent journalist who was present in the courtroom, provides an example: Chutkan claimed that a Truth Social post in which Trump called Washington “a filthy and crime-ridden embarrassment to our nation” was an attempt to “disparage the District and the people who live in it, including those who could eventually make up the jury pool in this case.”

“Politics stops at this courthouse door,” Chutkan laughably warned. This is someone who has played the role of a line Democrat, publicly accepting the narrative that Trump directed the violence at the Capitol on January 6, despite the fact that he’s never been charged with incitement or any other crime of violence—not because the Biden DOJ hasn’t been trying, but because it lacks evidence. In her ruling, Chutkan accepted the prosecutors’ argument that Trump is “encouraging violence” by publicly claiming that, for example, the case is “rigged,” Smith is “deranged,” Chutkan is a “radical Obama hack,” and “if you go after me, I’m coming after you”—this, even though Smith hasn’t charged Trump with incitement or obstruction of justice based on anything the former president has said or done.

“First Amendment rights must yield to the imperative of a fair trial,” Chutkan said, concluding that Trump’s statements “pose sufficiently grave threats to the integrity of these proceedings.”

She is, of course, wrong. If you despise Trump, you must put aside your prejudice to understand why she’s incorrect, and to remember that restrictions placed on the right of anyone to speak should be treated with skepticism—all the more so when that person is a criminal defendant and the restrictions concern details of accusations against him. Yes, everyone knows that Trump says a lot of stupid, careless, and provocative things. This is, alas, how he chooses to express himself. But the former president has a right to contend that he’s being politically persecuted by prosecutors who are Biden-administration officials directed by the president and his attorney general to weaponize the criminal-justice process against Democrats’ chief opponent. And the court is obligated to minimize the intrusion of the judicial process on the electoral process—a duty that Chutkan is failing to uphold.

Trump would have the right to speak out even if the prosecutor and judge had refrained from indulging in their own public commentary. But they have not.

Recall that on the day Jack Smith indicted Trump, he gave a press statement strongly implying Trump was criminally responsible for January 6. Smith did this even though he hasn’t charged Trump with a Capitol riot offense; not once in hundreds of prosecutions of Capitol riot offenses has the DOJ alleged that Trump was complicit, let alone that he was an unindicted co-conspirator in violent criminal schemes; and prosecutors must limit their public comments about an indictment to the charges filed and are ethically obligated and duty-bound not to engage in inflammatory, prejudicial commentary about uncharged crimes.

Recall also that, in sentencing Capitol riot defendant Christine Priola, Tanya Chutkan thought it was appropriate to make a clear reference to Trump, condemning him and the DOJ’s failure to charge him with a crime:

The people who mobbed that Capitol were there in fealty, in loyalty, to one man — not to the Constitution, of which most of the people who come before me seem woefully ignorant;¹ not to the ideals of this country, and not to the principles of democracy. It’s a blind loyalty to one person who, by the way, remains free to this day.

Chutkan made another rather obvious complaint about Trump in the sentencing of Robert Palmer, when she told the defendant: “The people who exhorted you and encouraged you and rallied you to go and take action and to fight have not been charged,” adding that she had “her opinions” about what should happen but it was unfortunately not up to her to “make charging decisions.”

Needless to say, the government and the court are not permitted to undermine a defendant’s presumption of innocence and engage in gratuitous, extrajudicial musings and public commentary that can have the effect of tainting the jury pool. And yet, it is only Trump’s commentary that “presents a danger to the administration of justice,” while the commentary of the prosecutor and the presiding judge has been deemed acceptable.

Why do you think that is?

Judge Tanya S. Chutkan

Chutkan has contended that the “administration of justice” is the ne plus ultra of public interests, and that Trump’s tirades against the court, prosecutors, and likely witnesses jeopardize the public legitimacy of judicial proceedings. But her concerns would be unpersuasive even if there were no other ways besides constitutionally fraught restrictions on speech to address the situation. Despite the rushed schedule that has been imposed over defense objections, the trial is still five months away, and no jury has been selected yet. The notion that Trump’s rhetoric will have a material effect on the pool from which the jury will be chosen is dubious, considering that this is deep blue Washington, D.C. we’re talking about, where both the former president and his commentary are so widely detested that he has rightly argued he can’t get a fair trial there.² The Washington jury pool’s assessment of him is fixed, one way or the other. And it’s not like muzzling Trump is going to reduce pre-trial publicity about the case.

Chutkan is clearly driven by the idea that the judicial process need not take into consideration any other constitutional concerns, including the robust political speech that the First Amendment guarantees in campaigns for the nation’s highest office. Trump’s right to free speech, she averred, “does not give him carte blanche” to “vilify and implicitly encourage violence against public servants simply doing their jobs.”³

But the Supreme Court has repeatedly held that the administration of justice doesn’t justify censoring out-of-court commentary about pending cases or investigations, and that the First Amendment protects a right to criticize government officials, even harshly. That is so even when censorship doesn’t interfere with equally compelling interests—such as a leading major-party candidate’s political speech during a presidential election in which the prosecutions against him are a significant campaign issue.

Under the Supreme Court’s relevant test, the government may not burden a fundamental right unless it can establish (1) a compelling interest and (2) that its proposed regulation is narrowly tailored to vindicate that interest while imposing the least restrictive burden on the right implicated. Prior restraints on speech are particularly disfavored.

As Andrew McCarthy notes, in Gentile v. State Bar of Nevada, the Court invalidated a reprimand against a lawyer who held a press conference to speak out in defense of his client—even as some justices opined that, because lawyers are “officers of the court” and uniquely subjected to judicial and professional discipline, they could theoretically be subjected to restrictions that may not be applied to the media and non-parties to a litigation. I need hardly point out that Donald Trump isn’t a lawyer; he hasn’t voluntarily joined the legal profession and the bar of the court, for which privileges lawyers agree to the restriction of free-speech rights—including a commitment to refrain, for example, from public comments that could undercut the public legitimacy of judicial proceedings. In no way could it be argued that he has, expressly or impliedly, waived his First Amendment rights to participate in the January 6 case that he’s been coerced into.

In New York Times Co. vs. Sullivan (1964), the Court unanimously declared that the First Amendment reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Also noteworthy is the Court’s observation in the 1978 case of Landmark Communications v. Virginia that judges and courts have “no greater immunity from criticism than other persons or institutions,” and that prosecutors, police, and judicial processes must be subjected to “extensive public scrutiny and criticism” in order to “guard against the miscarriage of justice.”

The law is clear that speech can’t be restricted to prevent government officials from being criticized or even vilified.

Is there any doubt that, if journalists or pundits who were not parties to litigation made the same comments as Trump has about the January 6 prosecution, an application by the government to censor them would be laughed out of court? Even if a judge were intemperate enough to issue such a gag order, an appellate court would immediately invalidate it. Given Trump’s penchant for incendiary rhetoric, the substance of what he’s said cannot seriously be regarded as a clear and present danger to the administration of justice. And considering how often the former president has already weighed in about the events of January 6, and the fact that he’s well known for unreliable commentary, it’s hard to argue that his attacks will either change how prosecutors behave or succeed in silencing witnesses—the majority of whom are former public officials or current political players who, despite Chutkan’s concerns, are unlikely to be “bullied.”

And it’s not as though Trump is charged with a random personal offense. This case, which revolves around everything that happened in the 2020 election and Trump’s conduct in its aftermath, is unavoidably political, and has become a significant 2024 campaign issue. Joe Biden will run, to a large extent, on January 6, and Trump will run, to a large extent, on the justice system being manipulated against him by the likes of Jack Smith. To say nothing of the fact that the topic of the trial has already been the subject of widely publicized, intentionally theatrical congressional hearings held by the Democrats in the city where the trial will take place, and was also the focus of their multi-million-dollar TV ad campaigns throughout 2022. The point is that limiting what Trump can say about the case necessarily involves arbitrarily circumscribing what a political figure can say about a politically relevant matter.

Even if you think Trump is morally and politically responsible for creating the conditions that led to the Capitol riot, and that he should have been impeached, removed, and disqualified over his post-2020-election conduct, that still doesn’t render him criminally culpable for the riot, nor does it justify curtailing his First Amendment protections. You don’t need to endorse Trump’s rhetoric to recognize that the Constitution permits offensive speech. But so long as the former president’s remarks do not violate the law, Chutkan is wrong to say that Trump can’t talk publicly about the court, the prosecutors, and the witnesses—during an election campaign, as his unencumbered opponents are permitted to talk nonstop about the indictments against him.

The First Amendment should never be subordinated to other interests. You may loathe Trump and everything that comes out of his mouth, but you should defend his right to say it, as well as the right of voters in the forthcoming primary and general elections to hear it before choosing the nation’s next president. It’s as simple as that.

1. This is rich, coming from someone seemingly intent on making a mockery of the First Amendment.

2. One need only reference some of the Jan. 6 cases tried in the nation’s Capital to understand how screwed Trump is.

3. Note that Chutkan has to say that Trump might “implicitly” encourage violence because she has no evidence that he explicitly did so. Note also that just because she thinks the public servants are “simply doing their jobs,” doesn’t mean that it’s true, and that the Constitution doesn’t permit her or any government official to impose an unquestionable version of what’s true.