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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 An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.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.
It seems weird to me that you could be allowed to lock a person up pretrial and very substantially restrict their actual freedom, but not be allowed to ban them from making up false accusations against law clerks. The former seems a much more serious imposition, but it's absolutely routine.
Obviously pre-trial detention happens when the safety of the community needs to be assured, but surely a similar rationale applies in regards to Trump. He's deliberately whipping up mass anger against the people involved in his prosecution, and posting personal info (such as Letitia James's address) that enables one of his crazy followers to go do something vicious.
This anger will exist regardless, and kinetic action should be expected. It further delegitimizes and already illegitimate proceeding to issue such gag orders, and that is exactly how a hundred million Americans will see it, and nothing the court can do will change that - their only winning move is not to play. But they can’t help themselves.
True, but allowing the pot to be stirred to the point of death threats and violence is probably going to make things worse. If the gag order means that Trump cannot angry tweet his internet mafia into going after the judges, court officials, lawyers and witnesses, then there’s a good chance that the trial can proceed in an orderly manner and Justice will be done.
And if he’s tweeting about this without his attorney telling him not to, he has a terrible lawyer as this can only dig his hole deeper. It’s not hard to see how him stirring up his base and tweeting the home addresses of those who will testify against him can be brought up in the trial and bias the jury against him.
No there isn't, the whole premise of the trial is political. Is justice about to be done by partisan hack judges because those same justices decided that Trump isn't allowed to talk about it?
Tweeting the home addresses of court officials and witnesses is a pretty serious thing, especially given the anger of his base is pretty much asking for something to happen. I don’t see it as unreasonable to stop him from doxxing people and stirring up the base to do something about the unfairness of it all. I think not only is it dangerous to those people, but that it ultimately hurts his defense.
I don’t think this order means he can’t talk about the case or proclaim his innocence. My reading of it is more that he cannot specifically name people involved or give out identification of people testifying against him. He can still talk in general terms about the case, he can still make statements in his own defense about the charges. He just can’t say (SlowBoy (inserts photo of SlowBoy) is lying about me and persecuting me and preventing me from helping you by restoring America). He can say it’s political. He can accuse generally that witnesses aren’t telling the truth. He can campaign. He just can’t name names and post pictures of court officials and witnesses.
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