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Trump got hit by two gag orders from two different judges. The precedent in this area of law is severely underdeveloped, both because so few defendants get gagged, and of those who do very few have the resources or energy to mount an appeal. Jacob Sullum writes a great overview of the issue:
So to avoid the common pitfalls in discussions like this, set aside Trump for a moment. Should judges have any authority to impose gag orders? If so, what limits should be in place? After working out the questions in theory, how does your position apply to Trump?
I think gag orders can be appropriate in a very limited set of circumstances. For example let's say a newspaper owner is charged with murder in a small town. He should always have the absolute and unrestricted right to discuss the allegations against him and mount a defense in public. There are some areas where it starts to get cloudy for me, like for example if he hires an investigator (legal & appropriate) to dig into the history of the main witness against him (legal & appropriate) and he gets his hands on her diary (potentially legal & potentially appropriate). He then spends the lead-up to the murder trial publishing massive coverage the lurid details of all her sex kinks and fantasies, which isn't implicated in the murder charges. To me this starts to look like witness tampering/intimidation, where the defendant is humiliating a witness with the intent to discourage her from giving testimony.
So my answer is here would be yes, judges can impose gag orders but they should be extremely narrow. The operating principle should be to always allow defendants to discuss the direct charges against them, including the ability to discredit witness credibility. There's a blurry line between when someone is discrediting a witness on relevant matters, and when they're just trying to make their life hell to discourage them from testifying. An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.
So with that out of the way, how does it apply to Trump? Judge Chutkan's order restricts him from making statements that "target" the prosecutor, court staff, and "reasonably foreseeable witnesses or the substance of their testimony". Practically speaking, it goes without saying that it's a terrible idea to talk shit about the court or prosecutor while your case(s) is pending. There are some obvious areas where Trump's commentary is inane and irrelevant, like posting a photo of a judge's law clerk and claiming she's "Schumer's girlfriend", or posting about the prosecutor's family members. Discrediting witnesses is harder to draw a clean line on, because again there's a gradient between discrediting and intimidating. I think Trump should have the absolute and unrestricted right to discuss any of his charges and discredit any evidence and witnesses against him. While I disagree with that part of the ruling, I don't know how I would rephrase that clause, and so my reaction is that in these close cases we should default to allowing speech rather than restricting it.
Edit: @guajalote changed my mind on the propriety of Judge Engoron's order prohibiting "personal attacks on my members of my court staff". I agree that criticizing government officials should always be protected, even if the speech is targeting irrelevant or uninvolved individuals. A narrower order prohibiting incitement would've been more appropriate.
I'm not sure why it's important to discredit a witness in the public eye, instead of at trial where you're allowed to say all those things directly to the judge and jury.
Especially in light of the negative externalities to the system itself, ie if we allow defendants to make witnesses and judges and prosecutors and jurors lives a living nightmare right up until the line of 'definitely undeniably direct tampering', then that sets a precedent where no sane person wants to fill any of those roles, and the process of justice is impeded.
Also, I agree that a fairly narrow range of things that someone might say about their trial should qualify as tampering/intimidation. However, defendants have a strong motive to preferentially say those things, and therefore we should a priori expect a lot of the things they would say to fall into that category, and therefore expect proper gag orders to cover a lot of their actual intended speech.
I actually think it is a good thing that attempting to launch a spurious prosecution of the leading opposition candidate in an election year makes your life a living nightmare. It isn't like the indictment is secret or anything - the rabid Trump supporters can just go read Judge Chutkan's name in a newspaper if they really want to find out who she is. And further on from that, it isn't like Trump needs to tell his followers to do anything - they are going to perceive (correctly? who knows) that the deep state is trying to prevent them from having their voices heard in the democratic system, and that's going to make a lot of them angry.
If the prosecutor doesn't want to make her life a living nightmare, she can simply avoid doing something which a vast majority of the country views as an unconscionable assault on democracy and their ability to have a say in how their country is governed. It isn't particularly hard to avoid charging your political opponents with offences on shaky grounds while letting even worse behaviour from your own side go unchecked - I don't think there's a single poster on the motte who's managed to commit that particular blunder.
Just over half -- 52% -- think Trump should have been charged with a crime in this case, while 32% said he should not have been..
Also, see my response here.
Also, OP is talking about the general case here. If you want to write into the law a separate clause for 'political candidates currently running for office and also on trial cannot be issued gag orders', that's something we could discuss (I'm against), but it doesn't really answer the general question we're discussing here.
I don't think your response in that other post really says anything worthwhile with regards to this conversation. Whether January 6 was actually a serious, deadly insurrection or not is an extremely partisan issue and still a matter of active debate, so calling back to it isn't going to convince anyone who hasn't already accepted your premises. A plausible reading of the events of January 6 is that the federal government made the protests worse on purpose in order to have an excuse to crack down on right-wingers - in which case appealing to how terrible that event was is just an argument against your own position.
As regards to the general question, my position is that the prosecutions are largely spurious and politically motivated, due to far more egregious crimes being ignored or treated with absurd amounts of leniency (did you ever read Hunter Biden's proposed plea bargain? I mean holy shit), and we already have big norms and principles against partisan prosecution like this. The incredibly overbroad gag orders like this are just comically absurd on the face of it - I find it extremely hard to believe that you'd be ok with Texas launching investigations into Biden, Harris and any DNC spokespeople for corruptly profiting from the Ukraine war, arranging for important court dates to overlap with important campaign dates, and then issuing a gag order preventing them from speaking negatively about any potential witnesses that includes every single member of the Republican party. I'd support a more general principle that gag orders should not be applied to political candidates, but it beggars belief that you'd be ok with what's happening here if the political valence was flipped.
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This is basically a lie the government tells. The cop will tell you to save it for the judge. Your attorney will tell you not to talk to the public... AND he won't want you to testify at trial, and if you do it won't be you telling your story but a very formalized thing where the prosecutor asks you questions that make you look guilty no matter how they are answered, and your attorney asks you questions which make you look good if you answer the way he told you. You'll basically be moved through the system without ever actually having a chance to actually give your side.... even if you're not convicted.
That's interesting to know, and I believe it for the average person who gets a public defender, which is enough of the cases in existence that it's very relevant to the overall question.
In the specific examples here, though, do you really think that's what it will be like for Trump? Or would be like for the hypothetical rich newspaper owner?
I have the intuition that, if you're paying for your own team of 5 or 20 lawyers, you get a lot more time to talk and a lot more discretion over what you say.
But I have never actually watched any court proceedings in detail, so I could still be wrong.
For Trump it's even worse, because his lawyers know not to push his case too zealously or they'll end up prosecuted too, like Giuliani, like Cohen, like Powell.
There's a pretty big distinction between zealous representation and defamation. Participation in a matter of public importance doesn't give you license to make shit up out of whole cloth.
More importantly, there's also a difference between zealous representation and election fraud.
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Indeed, as large as the difference between being a Democrat and being a Republican.
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Say you are a real estate developer trying to sell condos in your building. Girl who you had a drunken hook up texted you the next day saying how much fun she had with you last night.
You ignore her text. 2 weeks later she claims rape. It’s in the newspaper. Suddenly your name is tarnished. Everyone in town now views your condo building as feeding money into your pocket. Sales slump.
Now do you see why this hypothetical real estate developer would have a reason to hit back in the media? He’s being significantly punished (maybe leading to bankruptcy) without ever being found guilty in the court of law.
Of course Trump has motivations to hit hard against the judge and prosecuting attorney. The more partisan they appear the more it makes him look better and get the marginal voter.
Your hypothetical didn't actually mention anything about a court case in which a judge could issue a gag order... I assume the idea is supposed to be that the court case is underway at the same time it's in the newspapers, and the protagonist will eventually be found innocent, but only after their reputation has taken a hit, and the reputational hit either won't be reversed by alter being found innocent, or too much financial damage will already have been done by then?
I guess what I would say is that 1. that sees like a really narrow case (most cases don't go to newspapers while they're happening, most prospective buyers probably aren't reading the local newspaper or googling your name, most rape accusations don't go to trial anyway, there has to be a big financial thing happening in between the time of the newspaper article and the time of the not-guilty verdict, etc), which doesn't make it irrelevant but means it should have less influence over how we design policy than the median case, and 2. I would hope a judge in that case wouldn't issue a blanket gag order, it seems like you could say a lot to protect your reputation without crossing the line on a conservative gag order, and as OP states gag orders are really quite rare anyway, and 3. yeah, there may have to be some trade-offs between corner-cases like this and making the system work in the median case.
That said, yeah, I take your point that sometimes you want to defend yourself in the court of public opinion at the same time you are defending yourself in actual court, and this creates a genuine conflict of interests between protecting the court proceedings and protecting normal speech-based liberty.
I think my intuition on this mostly falls on the side of 'being a defendant in a trial sucks in a lot of ways, especially if they're keeping you in jail during the trial or crippling your family with charges related to getting out on bond, so this isn't an extraordinary new type of burden compared to all the other ones. I'm open to the idea that we should reform the system to make it less damaging to defendants who have not been convicted yet, but if we are deciding to care about that then these super-rich and powerful guys worrying about their reputations are way down on my list under a lot of other defendants who need the help more urgently.'
I am not against reforming the system and limiting punishment by process. Things like releasing mugshots do damage people so I would have no problem with limiting releases if a process isn’t followed. Maybe you need a grand jury to review the evidence and declare something like the accused crime represents a significant threat to society before trial.
In the case of Trump it does seem reasonable that the process itself could harm his election chances, even moreso if he wasn’t Trump who doesn’t mind breaking norms and speaking out. He has a rational argument that the process harms his ability to run for office so I believe he meets your standard.
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