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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 An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.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 agree this includes a vast number of people, and that's one reason I don't support this part of the order. For context, it bears mentioning that Trump is absolutely being treated with kid gloves on by the system. You can ask any defense attorney what would happen to their regular joe client if they started attacking the prosecutor, the judge, the clerk, or any of their families. It's absolutely inconceivable that any random schmo pulling that would not be jailed immediately. Courts routinely and reflexively keep people behind bars ahead of their trial date for things far more petty. I remind you that there's 400k people in jail right now in the US who haven't been convicted of a crime yet, some absolutely because they're too dangerous to be let out, and some because they can't scrounge the $100 needed to bail out).
I can agree with this on the one hand, in that if some random sovereign citizen pulled these same stunts the system would come down on them like a ton of bricks - but I think a lot of these actual prosecutions are very much not "being treated with kid gloves on". I'd reserve that phrase for the treatment that Hillary Clinton got with her email "matter", or that Hunter Biden got with his crack/guns/lying on government forms/corruption/unregistered foreign agent activity/tax avoidance/driving on crack. My reading of the situation is that the DOJ wants to crush Trump by any means necessary, they're just scared of the pushback they'll get for being too nakedly corrupt which is forcing them to temper their approach.
These disputes come up regularly here and they generally get stuck in an unresolvable mire. I don't know any obvious solutions, because whatever distinction one side mentions gets dismissed as irrelevant or immaterial by the other side. Maybe one possible solution is to list out a list of objective metrics and only then figure out how to apply them to each situation. For example in the context of "mishandling classified information" we can maybe outline as metrics: number of documents, sensitivity of information, whether there was any recalcitrance, whether there was any dishonesty or fraud involved, what the motive was, whether there were any justifications, etc etc. The goal here is to avoid the all-too-common tactic of glossing over incriminating factors and highlighting only exculpatory.
I also don't think this is really resolvable either. If you can come up with a good rubric for determining the harm caused by misuse of classified information you're not even halfway there to determining the ultimate cost - was Hillary's email server the source of the leak which led to China rolling up most of the CIA's agents there? I don't know, and I don't think it's even possible for someone without access to a lot of classified information to find out. At the same time, my understanding of Trump's motives for retaining classified documents was that they contained proof of government malfeasance in Crossfire Hurricane and the Mueller probe it turned into. Those documents would have been extremely sensitive and had immense consequences if they were released to the public - but the specifics of the situation are so unique that I don't think looking at these two instances and going "Well, Clinton's mistake revealed a bunch of SAPs and lead to all of the CIA's chinese sources being tortured and killed, but Trump had more pieces of paper with NOFORN on them so despite nothing happening as a result his actions were worse" is in any way conducive to gaining a clearer understanding of what happened. This just isn't the kind of question where objective measures are particularly useful or even easy to acquire.
That said, I do think that there's some kind of objective metric where you can compare the actual negative impacts of Trump's retaining of classified documents in accordance with long-standing tradition as opposed to Hillary's compromised-by-foreign-powers email server specifically designed to evade FOIA scrutiny. But as my framing of the issue gives away, my own bias is for populists and against the establishment, so I'm definitely not going to be able to come up with it.
Woah that's crazy, how do you know this?
I don't know it and can't prove it (and I also think there could be more documents unrelated to it included), but that's the only set of documents I can think of that fit the category "Trump declassified these but the government disagreed". It's likely that he also took some other stuff, like Presidents seem to do normally, but those are the documents that seem most likely to be retained. That said I don't actually know for certain - I'm sorry for being unclear with my language and giving a higher confidence level to that information than was warranted.
No worries, I really appreciate you clearing it up.
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