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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 An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.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.
Did you ever clerk? Going after a judge's clerk is what provoked this more than anything else. Clerk is an anonymous job, judges treat them like their children or their pets but no one outside the courthouse is or should ever be aware of anything they do. Any judge is going to go incandescent with rage at that point. Attacking a kid just out of law school who has zero impact on the proceedings directionally, is just so downright evil and unnecessary that he's going to get slapped down for it.
I clerked for a federal judge and I agree with your assessment, but it doesn't change the fact that a broad gag order has constitutional problems.
Sure, but going after your judge's clerk is just one of those things. Kill a cop, the cops will be out for you like nothing else. Imprison a journalist, journalists will make it a cause celebre like nothing else. Go after a judge's clerk, the whole courthouse is going to come down on you.
Hard facts make bad law. Whatever constitutional deficiencies exist in the gag order, it's not 'lawfare' or the judge having it out for Trump for political reasons. It's crossing a red line that was super duper easy not to cross, that will make almost any judge make it personal. You're better off talking shit on the judge himself than talking shit on his clerk, in most cases.
I again completely agree with you. Trump's decision to go after a clerk was profoundly stupid and improper. Still, the gag order seems constitutionally overbroad and it would have been wise for the judge to exercise more restraint, given that this is a high-profile case and the gag order involves a fundamental constitutional right. I expect federal judges to exercise more judgment than cops or journalists in responding to these kinds of provocations, even if the provocation is clearly way over the line.
To clarify, the clerk talked about here is for Judge Engoron in the New York civil fraud case. His gag order was issued orally and only restricts "personal attacks on my members of my court staff", it doesn't even prevent Trump from shit-talking the judge. Do you think this order is constitutionally overbroad?
I haven't read the full transcript of the order so perhaps I have an incorrect impression of it, but I think it is overbroad, yes. According to the article you linked "Justice Engoron said that his statement should be considered a gag order forbidding any posts, emails or public remarks about members of his staff." Being able to speak out against government officials in a proceeding is an absolutely core aspect of what the 1st amendment protects. The right to say things like "the judge's law clerk is politically motivated and out to get me" should be inviolable, even though in this case it's an incredibly stupid thing to say. If the gag order was narrowly tailored to allow protected speech, e.g., Trump can criticize the law clerk but can't call on his followers to harass the clerk, I would feel differently.
You've changed my mind, I agree with your point.
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