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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 An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.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.
Well, I guess that just means judges control who can run for public office. All you need is a blizzard of bad-faith lawfare and judges willing to go along with it to "fortify" up some elections. Texas better get Biden under indictment fast and start issuing some gag orders of their own.
Oh no, I'm all for it. The sooner the courts can get as deeply involved in politics as the intelligence agencies are, the sooner we can dispense with the stupid notions that we're a "democracy", or a "nation of laws". Inevitably, the law will be whatever Harvard Law says it is. Until it isn't, and then it will be what whoever has the biggest gun says it is.
I’m not a fan of democracy, but if we can distinguish the autonomous political system from representation generally; it’s still worrisome to imagine what our political future would look like once we break past that illusion.
“Fascism” or even “authoritarianism” have never been a pejorative to me, but I still worry about casual uses of the concept. As palatable as I am to the latter, a move to it away from the former doesn’t mean that therefore society becomes ruled under “Tretiak,” or anyone else.
If you ask me, once we realize that, we have two options:
1: A reversion to federalism. We withdraw from foreign affairs slowly, push policy back down to the state and local level, become balkanized. States restrict travel and trade between themselves. Mutually warring courts try to get leverage on the other as they all lose complete control of the legal system. We lose our position as sole superpower, we are no longer the world reserve currency, standards of living drop to come in line with Europe more broadly and our national politics grinds into a multi-century quagmire.
2: Rome 2, Electric Boogaloo.
I’m not at all convinced this is a realistic solution, for a number of reasons.
When you think about how much has changed in the world over the course of the last 100 years, I think the conclusion is fairly easily established that most of the problems waiting out there for us are global in nature, and can’t be addressed on a local or fully individualized basis.
The whole neoliberal obsession with “small efficient government” for instance, is a complete nonstarter. “Small efficient government” works when you face “small efficient” challenges. When you face something ‘systemic’, you need the strong and long reach of the arm of government to be able implement solutions that are 1) unprofitable to do, 2) can’t rely on community consensus to generate the will and 3) need nation state backing - all of which are unworkable on a local level.
As for the US losing superpower status, that’ll happen eventually. As it has with every nation that’s come before us. Whatever that catalyzing moment will be, nobody knows. But that doesn’t mean other nations won’t be stepping in to try and fill that void as best as they can. Any ground lost is ultimately ground ceded to an aspiring rival power.
Maybe we're getting a little far off topic here, but this is touching on one of my bigger general concerns. Many of our problems do seem pretty big. To be specific, I'm talking about things like how much control near-monopoly tech companies and national mega-corps are coming to have over our lives, specifically retail and news and entertainment media, how much influence a united and stable Russia, China, etc are able to wield over world affairs, etc. I'm not so sure that a United States with the Federal gov effectively throttled and the many State governments ascendant would be better able to deal with these issues.
The issue is that the unthrottled FedGov we have now is the thing that is working with near monopoly tech companies to extend even more control of our lives, and by "our" I mean anyone on Earth. A united and stable Russia, China, etc. might be enough to provide counter balance, but I'm not convinced.
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