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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 An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.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.
I think not. If it's witness tampering, charge the appropriate crime. If it's obstruction of justice, charge appropriate crime. If it's interfering with government proceedings, charge the appropriate crime. If it's speech that nods in the direction of one of those but doesn't actually rise to the level of meriting a charge, tough shit, defendants do actually get to say mean things that aren't criminal.
I can recognize the difficult balancing act that some utterances would cause here, but ultimately just side with First Amendment rights dominating those considerations. Perhaps even more to the point, I don't trust judges to not thoroughly abuse their authority. To wit:
Of course! I'm not dumb enough to do such a thing, but the idea that those that would affront a judge could be punished for offending rather than any actual criminal action is an affront to my sensibilities and leaves me disinclined to start granting additional judicial powers to remove constitutionally protected rights as they see fit. If we lived in a hypothetical world where Jack Smith was indeed engaging in a deranged witch-hunt and the judge was a biased, Trump-hating judge, it would be very bad to deny the defendant the ability to say so.
I think this is a reasonable position. My pushback is that the purpose of gag orders are to prevent the harm before it happens, rather than punish it afterwards. As @AshLael echoes, witness intimidation is extremely difficult to prove. The only times I've ever seen charges filed for this is when the guy was dumb enough to threaten a witness on a recorded jail phone call. Other times, witnesses refuse to testify fairly commonly. They either just make themselves difficult to reach, or outright refuse (one guy told the prosecutor in one of my cases out right "That's my aunt, I'm not testifying against her" and they dropped the charges even though there's no nephew/aunt privilege). So if a witness is unavailable, we very often have no idea exactly why.
The other issue gets into how gag orders are enforced. This is generally shuffled under the broad "contempt" power of the court, and overwhelmingly the punishment for violating a court order is either a revocation/modification of your pretrial release conditions (as happened with SBF) in criminal trials, or monetary penalties or default judgments in civil cases. Outside of the pretrial release context, actually jailing someone who violates a court order is extremely rare, and that's because generally as soon as the threat to liberty looms over someone then they're entitled to an attorney and due process protections similar to an actual trial (jurisdictions vary on this). A gag order or the like sidesteps some of those concerns by warning the person ahead of time that they'll be punished if they do X, and knowing that they're being watched tends to have good dissuasion power on its own.
Setting aside the difficulty in proving witness intimidation, there's going to be a calculus on the part of the defendant. For your "criminal enforcement" plan to work, the penalty for witness intimidation has to be at least as bad as the crime they're accused of, and then you have to add more time to factor in the chance they won't get caught. If the crime is already a life sentence, then there's no deterrence to witness intimidation. That's why courts deal with this concern in criminal trials by just keeping the person in custody before the trial. Again, better to prevent it from happening than try to punish after the fact.
So overall I don't see a practical solution to this concern except through a pre-emptive order.
This makes perfect sense, but I think it also lays bare exactly why I'm so suspicious of this judge attempting to use such an order at this time. OK, sure, I could use my imagination a little bit to think about situations where a judge could reasonably warn Tony Soprano that he may not Tweet about how he doesn't want anything bad to happen to people on the way to court in ever so slightly less threatening tones. But really, what exactly do we think is going to happen here? I could see someone being inconvenienced or publicly berated as a result of their testimony, but it seems like there's just no legitimate risk of a relevant witness informing Jack Smith that he's busy showering that day or something. The court will know where these witnesses are and I really doubt any of them will actually be prevented from testifying. Trump seems much more likely to cause witness irritation than witness intimidation.
Of course, that's digging back into the object-level. I can see the case for broader powers when hard-to-detect witness intimidation is plausible, and it's not hard for me to imagine organized crime situations where that would just about be the default operating procedure.
This may end up being true, I think the motivation here is that the courts don't want to take any chances, despite knowing they can't stop everything. I don't think you'd claim that what Trump says doesn't matter at all, right? There's always going to be at least some people at the margins that might be swayed one way or another. There's already a woman who called Judge Chutkan and left a voicemail saying "Hey you stupid slave nigger, you are in our sights, we want to kill you." and "If Trump doesn't get elected in 2024, we are coming to kill you, so tread lightly, bitch. You will be targeted personally, publicly, your family, all of it." This woman has a history of calling other officials with similar threats, and her dad says all she does is sit on the couch watching the news every day and getting shitfaced on beers.
So she probably doesn't have the wherewithal to actually get off her ass and actually carry out the threats. But there's 330 million people in this country, if someone out there can get so enmeshed in Qanon lore that they drive themselves to DC to rescue the kids in the pizza shop basement, that's a lot of unknown variables.
There's people that will leave insane voicemails no matter what Trump says. I'm willing to grant that it's theoretically possible that absolutely nobody is swayed by what Trump says. but the court system has no reason to take that chance, especially when Trump's attacks are so irrelevant and pointless.
They're also drowned out. Like, in a normal case where John did some crime and wants to intimidate Jim into not testifying, nobody else in the world gives a shit. Jim gets pressure from John, and that's it.
In this case, everybody else in the world gives a shit. Every media outlet; every power broker; every cop with a badge or prosecutor with a half-baked charge in a different jurisdiction; everybody is already pressuring potential witnesses up to eleven. To slightly butcher a line from an evergreen Onion skit, some want them to do one fucking thing; others want to do some other fucking thing. And they're all perfectly legally allowed to do all sorts of shit to pressure them (even if they're not technically allowed by the rules; ain't nobody gon' prosecute them). The only person in the world who is not allowed to pressure them is Trump.
If you want to argue for a rule that defendants should be allowed to pressure witnesses, I'd be very eager to read it.
I've seen a case where prosecutors sent Child Protective Services to take away a witness's children, so they could make a deal for said witness to get their children back if they testified against the defendant. If that's allowed (and it is), than pressure from the defendant should certainly be allowed. If you tie the defendant's hands while giving the prosecution free reign, you're making a mockery of the system (which, to be fair, should be roundly mocked).
It's a very principled stance and I respect that.
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