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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 An example of this blurry line is what happened to SBF, where his pretrial release was revoked in part because he leaked Caroline Ellison's diary to the NYT and because he seemed to have been coordinating testimony with FTX's general counsel.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.
Alright, I feel like I extremely reluctantly have to be the person to remind everyone that our legislative body was invaded by an angry mob and that a seated session of Congress which was counting electoral votes had to be evacuated in fear for their lives.
It is not unreasonable that the judiciary should think that there should be a trial over these and all the other actions actually at stake in this trial. If there were some dispassionate philosopher-lawyer who cared only for the letter of the law and it's enforcement, I would expect them to want to have a trial on these topics.
I'm not going to claim that the prosecutor or everyone at justice or etc. have no political motivations or desire for revenge or etc. at all, nor that everything is always 100% of the time being done in a perfectly professional and dispassionate way that has nothing to do with politics. Of course that's not true.
But, "The entire point of this prosecution is to hamper Trump's efforts to campaign"?
No, that's a nice side benefit for some of the people involved. There's very plausible crimes being tried here, real things really happened in the real world.
They were invaded by the 2nd politest mob of the covid era. Politest goes to the canadian trucker convoy.
There was only a single death from violence, and it was a protestor shot by security. I think all the other deaths were via heart attack, including the one security guard that people originally claim was attacked with a fire extinguisher.
Nothing was burned down. No one was run over by a car. There were no large scale medieval weapons fights. The "mob" dispersed when asked to.
There were a few groups of FBI informants that roped in a few retards to plan on doing more stuff. They got caught and heavily prosecuted, the same way every other group like this has been caught and prosecuted. The racial makeup and supposed "motivations" of the retards has changed, but the FBI playbook hasn't.
I normally don't care to comment on Trump stuff, but I don't like the massive gaslighting that it feels like we all went through during 2020.
During the summer of 2020 there were massive riots in the streets. Cars, police stations, and businesses burned to the ground and looted. Large physical confrontations in the streets. People out at the wrong time being beaten to death by mobs. It was helpfully pointed out the time that the protestors themselves didn't carry out these beatings or killings. I'm sure the victims of the violence felt much better in their afterlives knowing that their deaths were only tangentially caused by the lawlessness that the protests created.
The health authorities that had insisted on everyone being locked down and not going outside to even mingle within parks also wrote a blank check to these protestors. They were no longer "super spreader" events, but some weird health carve out where protesting police violence somehow made you immune to spreading covid.
That was the context of the January 6th protest. Some people broke some windows and busted down a door, and then a bunch of others just calmly walked through the capital building like they were on tour and took silly photos like it was a fairground. Meanwhile every news station in the country breathlessly talked about the "violence" of the January 6th protest. The same news stations that were talking about the "peaceful" protests that same summer as buildings burned in the background of the newscast.
"They interrupted an important government function" - someone, hopefully not you
No, they interrupted a ceremony of the state religion. The presidential level of politics isn't a place of law and order, its a place of feelings, perception, and group consensus. At most it caused the equivalent of a rain delay, and it was all still done within a day. There was no plausible way that delaying the ceremonies on January 6th would have impacted who was president for the 2020-2024 term. Even if the ceremony had somehow never happened, Biden would still have become president. Because most of the US government acknowledged him as such.
The January 6th incident has caused the media to invent this weird perception that our government is one delayed ceremony away from being overthrown. As if every top leader in the country is a rules following robot, where if the proper procedures aren't exactly followed then they'll just collapse in a heap and stop functioning. We are supposed to believe this despite mountains of evidence to the contrary ... the explicit rules of the constitution have been broken many times, and the typical reaction, if there is any at all, is a collective shrug.
The claim that the Jan 6 mob was polite and peaceful is one of the most astonishing claims I see repeated in this otherwise pretty reality-grounded community. I don't understand how you can make claims like this when we have widespread video evidence of how violent the mob was. Like, are you just unaware of the video footage? Or are you of the belief that the existence of some footage showing peaceful and orderly intruders "cancels out" the violence, like some sort of algebraic exercise? I cannot overstate how baffling I find this.
If that's the worst you can find, it still looks... fairly peaceful?
The crowd is mostly just pushing the riot cops out of position, not even grappling them -- certainly not throwing rocks etc. Like a football offensive line -- the reason it looks chaotic and violent on the officer's side is that their line is too small, and can't stand.
The cops are the ones with the close-quarters pepper spray and wacking people with batons -- the level of discipline in terms of not much striking from the crowd in these circumstances is pretty good, actually!
Yeah, this is the most shocking stuff The Telegraph (obviously a very biased source) could come up with? The audio they spliced in does sound very panicked, but it doesn't match with much of what's happening in the video. I note that nothing was on fire, and the only thing approaching a weapon that any of the rioters used in that footage was a hockey stick (not clear what they were hitting with it, hopefully not a person). Decidedly NOT what you could say about footage of the BLM riots.
EDIT: I mean, I do agree that it wasn't "peaceful and polite". There was clearly anger, and some people went too far.
The Telegraph, referred to as the Torygraph by Private Eye and its readers, is the serious newspaper of the British right (as opposed to the Murdoch-owned Times, which is traditionally pro-Establishment with a mild right-wing bias). They gave Boris Johnson a column after he was fired from the Times for making up quotes, and continued to employ him after several of his anti-EU stories were exposed as fabrications. Needless to say, they endorsed Brexit, Johnson as PM, Trussonomics etc.
Given the lack of a serious right-wing newspaper in the US, the Telegraph is probably the most pro-Trump "reliable source" out there.
Interesting. I admit ignorance here - I just assumed any UK-based newspaper would be very far to the left. (The video itself still seemed pretty biased to me.) Thanks for the correction.
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