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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 An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.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 glad you commented on this because I wanted to ask something in the same area of a judge imposing a gag order.
It's always seemed to me that charges of "Obstruction of Justice" or "Contempt of Court" are small tyrannies of the justice system. For obstruction because I view it as only applicable to what is already a crime--theft, assault, murder--where it would be considered an aggravating factor, but that otherwise one cannot obstruct justice in itself as a crime, such as by nonviolently resisting arrest (fleeing police). For contempt because in part I view it as a fundamental right to be contemptuous of court, and more because of examples such as H. Beatty Chadwick who was imprisoned for 14 years for failure to comply with a court order. It does seem like he hid the money, but that the judge & courts could do nothing but threaten him with prison strikes me as "a 'you' problem"; that his "crime" was in no measure deserving of incarceration, or if so, certainly not 14 years; that if it is supposed to serve to discourage others from doing the same that breaks us into the topic of ordered alimony and the enforcement thereof as a reasonable interest of justice and, ah, lol. lmao.
I'm open to being wrong on the theory level but it seems the practice level is full of abuse.
What does that mean? Contempt of court is ignoring the authority of the court. No one can stop you from doing that, but the court has to have the authority to bring you into compliance. To say that they can't do that is to, in effect, say that participation in the legal system is voluntary. Do a crime and then just say no to prosecution.
Indeed, and if Thomas Hobbes and Edmund Burke were alive today, they would be spamming the :Yes_Chad: meme in chat.
I somehow doubt that either Hobbes or Burke would endorse the premise that one ought to be able to simply refuse to be prosecuted for murder. And even if they did, I'm not sure why that would matter.
It's not that they "ought to be able", it's that they ARE able to. Hobbes' core thesis is that participation in society is a choice, and that it's a choice that ought to be made gladly because the alternative is to be "red in tooth and claw".
To put it another way, the laws of men (and women) are not self-acting, there is no natural force that can prevent an "indoor" cat from walking out an open door, or compel a stubborn 7 year-old to eat his vegetables. Thus agency and by extension responsibility must ultimately reside with the individual.
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Rather they explicitly tell the reader that it is impossible to stop someone from refusing to be prosecuted for murder. You may move then the conflict into force of arms and prosecute it violently, but it isn't in your power to stop them from refusing. Which is important because such practicalities are how natural law is derived.
There are countries to this day, such as Belgium and Germany, that do not view escape from lawful captivity as an offense in and of itself, and the legal reasoning for this originally derives from such principles of natural law.
There are certainly arguments for contempt of court as an offense, but it can create absurd situations very easily, consider the following:
You are a US citizen in possession of a corrupted hard drive that contains random data. You are taken into custody for possession of illegal materials, and are ordered by the court to decrypt the hard drive. You can now be jailed for up to eighteen months for refusing to comply with an impossible order.
The powers vested in the judiciary are important, and the source of their legitimacy is equally as important in making sure they are not abused. Some argue that refusing prosecution that violates one's political rights by force of arms isn't mere right but a duty. And this is especially relevant in a nation founded by such people.
No, you can't. "'A party's inability to comply with a judicial order constitutes a defense to a charge of civil contempt.' Affordable Media, 179 F.3d at 1239." Berland v. The Conclave, LLC, SD Cal Case No. 20-cv-00922-H-WVG (2022) (Order Denying Petitioner's Motion for Order to Show Cause Re Contempt). Which should be obvious, given that the statute you link to explicitly says that refusal to comply must be "without just cause."
Random data is indistinguishable from data encrypted by a good encryption scheme. You cannot prove that a set of random data isn't actual data that has been encrypted, apart from trying all possible decryption algorithms with all possible keys and showing that none of them yield legible results.
This is true in theory, but how true is it in practice for laypeople who are using relatively common software out-of-the-box? My guess is that most common encryption software puts metadata in the clear concerning which algorithm they're using, PBKDF iteration count, and such. I think that's because for most common uses, the model is not that you need an actual blob that is indistinguishable from random. Instead, most uses are more than happy to have it be clear that there is encrypted data, clear which algorithm is encrypting it, and simply relying on the security of the unknown password.
When it comes to government demands to decrypt, generally the State has to go to sufficient lengths to show that there is, in fact, encrypted data and that the individual in question does, in fact, have the means by which to decrypt it. One example argument is, "We've seen this guy unlock his phone. In fact, ten minutes before we arrested him, we have him on video unlocking his phone, then setting it down, appearing to have no cognizance of the fact that we were about to arrest him. Further, he was not able to touch his phone between then and when we scooped it up." I'm not sure whether judges would generally be as, uh, reasonable about this sort of demand when it comes to their inherent contempt power as they are when it comes to requests by the prosecution to compel decryption.
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Defense that it is entirely at the court's discretion to honor.
What stops the judge from saying "Nah, Fuck you, we're going to charge you with contempt anyway"?
The answer is "nothing", you are appealing to a consensus that does not exist.
No, I am correcting OP's incorrect statement of the law.
A higher court is what stops him. "Discretion" does not mean, "I can do whatever I want." Judges are reversed for abuse of discretion every day:
City of Sacramento v. Drew, 207 Cal. App. 3d 1287 (1989)
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As I understand the jurisprudence as laid out in that order, the court decides what is or isn't a refusal without just cause, and though impossibility is of course a defense, the burden of proof is on you to demonstrate impossibility "categorically and in detail".
Of course we're setting up this hypothetical in a way that makes you indistinguishable from someone who does have an encrypted drive. And it seems mighty difficult to prove that this was never an encrypted drive when there is no way for you to do so, by design.
"I've forgotten the password" has almost never worked as an excuse as you know, and "This drive is empty and always has been" I don't think would fare much better. Ultimately it puts you at the mercy of whether the court thinks you're a liar or not. Which is the whole problem here: we are definitely in the realm of small tyrannies.
Thankfully, judges usually have better things to do than throwing random people in the slammer, but I wouldn't say it can't happen.
I don't see why this is any more perverse than any other example of "you can be unjustly fucked if a court makes an erroneous factual ruling against you"
"Is this apparently unreadable hard drive encrypted under a key controlled by the defendant?" is the same type of question as "Did she say yes?" - it is in principle a question of fact, not opinion, with a single correct answer, but the practicalities of determining it are that the jury will be making a subjective determination based on multiple pieces of circumstantial evidence. Courts decide these types of questions all the time, and need to. And an innocent person can be totally fucked if the court gets it wrong.
A world in which nobody could be criminally convicted based on circumstantial evidence is a world in which a lot of crimes are effectively decriminalised.
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