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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 An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.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.
This is actually even worse than it seems. "Reasonably foreseeable witnesses or the substance of their testimony" could include a vast number of people - what's to say Chutkan can't come down on him for even the mildest political attack ad by saying that Biden is a potential witness for the prosecution? The entire point of this prosecution is to hamper Trump's efforts to campaign, and this is just one of the tools they're using to achieve that goal. The legal theory doesn't actually matter at all, because the point is to hurt Trump's campaign and it doesn't matter if their every decision is immediately revoked upon appeal because they will have hurt Trump in some way. It's not like there could be any reasonable restitution Trump could receive afterwards either.
I'm pretty sure the point of this prosecution is to put Trump in prison.
That would indeed hamper Trump's efforts to campaign, but I honestly think they would prefer it if he was ostensibly free yet unable to actually talk or campaign. I think putting him in prison and actually sending him to gaol would be too big of a boost to his campaign - a lot of swing voters find things like putting the opposition candidate in prison for spurious process crimes while ignoring serious corruption and malfeasance committed by your son to be somewhat offputting.
It's really weird to me how many people (including Trump himself) can apparently only see these cases through the lens of their political implications.
The plan isn't to smear or discredit Trump and therefore make him unpopular. It's to lock him up for the rest of his life.
In this case, the political implications really do override, because it's a federal proceeding and therefore if he wins the election from jail he just pardons himself to get out.
I still think the funnier outcome is SCOTUS tells him he can't pardon himself and he has to rule from jail or give even more weirdly convoluted orders to the feds to get out.
Better would just put him in solitary and refuse to administer the oath of office, then per Article II he can't exercise any presidential powers.
Are you serious?
Remember that he won an election in this case given that we're talking about pardons. "Hey I know you won the election, but the losing side decided to put your president under arrest so you actually lose the election anyway." is not a message that would go over well with the general populace.
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