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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 An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.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).
How many former US Presidents have been subjected to the same level of prosecution?
Which is irrelevant, because no other US Presidents have committed the crimes Trump is being accused of.
If the facts set out in the Jan 6th committee report are correct, then
The last time anything remotely like this happened was the Hayes-Tilden election in 1876, and the fact that nobody was prosecuted for the malarkey then (which included a 3-figure number of murders) was part of a pattern of letting white southerners get away with shit that started with the culpable failure to hang Jefferson Davis and ended up with the north cucking to Jim Crow.
"Unsuccessful coup plotters go down" (whether they get the rope or just a long jail sentence depends on national tradition) is the historical default everywhere - there isn't a directly on-point precedent in the US because nobody in US history has tried to do the kind of things Donald Trump did between the election and Jan 6th.
You can argue that Donald Trump shouldn't be prosecuted because consensus reality is incorrect and he is factually innocent. You can argue that Donald Trump shouldn't be prosecuted because he is so disconnected from reality that he is incapable of forming the mens rea to commit a crime of dishonesty - based on the publicly-available information there is reasonable doubt on this point - although I am not sure you can do so with a straight face while suggesting that he be elected President of the United States. You can argue that he should be let off for the same reason Jefferson Davis was - that prosecuting someone for serious crimes of which they are obviously guilty is nevertheless dangerously divisive if a large percentage of the population still support the perp - but the precedent is that that was a mistake (at least if you reject Jim Crow and the Gone with the Wind/Birth of a Nation school of pop-history).
What you can't do and expect to be taken seriously is to argue that prosecuting a coup plotter is a shocking escalation, or that Trump is being prosecuted (at least as regards the election-related prosecutions) for something that a Democrat or pro-establishment Republican would have skated for, because neither Democrats nor pro-establishment Republicans would allow the kind man who would think of doing what Trump did near the presidency.
Not that it matters very much given that the politics of all this is driven by Jan 6th, but the story with the other prosecutions Trump is facing are similar,
There is a lot of evidence, including from before Trump became a partisan political figure, that he is unusually dishonest by the standards of rich and powerful Americans. This means that you would expect him to have worse-than-usual post-presidency legal troubles.
Didn't a bunch of states create mail-in-ballot rules that undermine ballot secrecy just for that election in particular before some of them got taken out by courts due to their irregularity?
Wasn't the whole Covid psy-ops leading to these rule changes in the first place?
"We can't have ballot secrecy because there is a horrible disease with a 1% mortality rate for 80 years olds, oh we can still have massive protests against police brutality, but not ballot secrecy, no no"
If there was evidence of a massive conspiracy showing all level of governments and media building up the Covid scare with the ultimate goal to undermine the integrity of the elections, wouldn't that be some kind of coup, or at least conspiracy to commit a coup?
Thanks to the Twitter files we already know that federal employees were pressuring social media companies to erase opinions going against the media consensus on Covid. From the same agency that back in 2015 was building up an investigation against Trump to prevent him from getting elected.
Well yes, of course the average rich and powerful American is a honest guy. Not the kind of guy to end up on Epstein's flight logs. Oh wait, I still can't see them, so I'm gonna have to believe that he is a honest guy and it's pure coincidence that Trump is getting prosecuted and not Epstein's buddies. The judges are just doing their work, nothing to worry about.
Before 2020, nobody thought that mail-in ballots were per se fraudulent. In 2016, three states including one swing state had all-postal elections (Washington, Oregon and Colorado), and most other states had no-excuse postal voting for anyone who applied. 23.7% of all votes were cast by post (see pp 9/10 here). And nobody on either side of the aisle thought that this was a problem that would justify overturning a close election.
Trump made specific allegations of fraud which were not true. He could have made the purely legal argument that slightly easier postal voting introduced in an irregular way was grounds for tossing the election on a technicality (as of 2016, it was a colourable legal argument based on the independent state legislature theory, which wouldn't be rejected by SCOTUS until Moore vs Harper in 2022) and allowing Republican State legislatures to choose electors, but that wasn't the argument he made. He said that he won by a landslide, that there was "massive fraud", that Dominion and Smartmatic voting machines meant that the in person votes were invalid, and that rogue election officials had added large numbers of fake ballots to Biden's tally.
You mean the pandemic with an impact visible at the macro-demographic level? Or are you telling me that governments outside the US faked 6 million deaths (by official count) or 25 million deaths (based on demographic statistics) in order to allow slightly easier postal voting in a US election?
Yes, which is why it is good that there is no such evidence. The pre-2020 conventional wisdom was that easier postal voting helps Republicans (because of the military vote), so if there had been a large-scale conspiracy to steal the election for Democrats, the main goal of the conspiracy would not have been slightly easier postal voting.
I didn't say that. I said that by the (low) standards of rich and powerful Americans, Trump is unusually dishonest. Heck, even by the (even lower) standards of greater-NYC real estate operators, Trump was unusually dishonest, this was common knowledge on Wall Street, and was in fact sufficiently common knowledge that a joke about it got into Sex and the City.
Epstein's buddies like one Donald Trump, who allowed Ghislaine Maxwell to recruit girls at Mar-a-Lago, who was a frequent flyer on the Lolita Express, and who promoted the corrupt prosecutor who gave Epstein a sweetheart deal the first time he got caught? Even by the (very, very low) ethical standards of Epstein's social circle, Donald Trump went above and beyond.
Because they don't have to be. Ballots can still be considered relatively secret with the exception of a few %age. When a large share of ballots get mailed in, then the mechanism by which these ballots get collected, who handles them and whether or not people influenced how they are filled becomes a bigger issue.
No, one side thought the Russians fixed the elections through Facebook ads or some such nonsense.
Maybe he got it wrong, doesn't mean that there was no plot to fix the elections.
Governments that are essentially vassals to the US, perhaps. Other governments could also independently find their own reasons to dabble in medical authoritarianism, and join in on the fun using the same existing justifications made-up by the most effective media in the world. "Look I'm not forcing you to stay home to cover up ongoing political issues, see Hollywood has the same problem"
And of course media control made it easy to dismiss outliers like Sweden which did not have any lockdown and was basically fine.
People all-over the world die all the time. I could see a strong incentive from less-developed countries to claim X number of citizens died 'from Covid' if that means they can get or simply maintain existing humanitarian aid from the West
There are only so many military votes you can get even if you made postal voting easier. On the other hand 'democracy'-supporting organizations used to hold ballot secrecy as important prior to 2020, so idk why.
How would they go about it? I'm not in charge of election-fixing for Democrats, so I wouldn't know but it seems you have some experience in their manner of thinking.
Oh man then if Sex and the City said it, it must be true. Out of all the real-estate scammers in the US, Trump is unusually dishonest. He was buying every judge to the point that it took him reaching the Presidency and suggesting defending the Southern border for somebody to finally decide, "that's enough, now we gotta get this unusually dishonest guy!" "Let me find the dirtiest dirt I have on this guy... Yes... This is perfect, the Russian President had some prostitutes pee on him!"
You have Epstein's flight logs? Why aren't you releasing them then?
Oh he promoted him but didn't hire him and was not in charge when the actual ruling happened. But he was in charge at the time Epstein almost saw consequences for his crimes.
If Trump was such a good buddy with Epstein, why are we investigating Trump over some paperwork issues or election quiproquo instead of Epstein? Why not investigate his role in the Covid masquerade?
Show us the flight logs, show us the Pfizer receipts, show us the meeting notes from the FDA, now that would be an interesting investigation.
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