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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 An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.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.
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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