By
In the federal election interference case pending against Donald Trump, special counsel Jack Smith’s office sought a gag order against the former president. As NBC News reported, U.S. District Judge Tanya Chutkan was amenable to the request — at least in part.
The judge overseeing the federal election interference case on Monday issued a partial gag order forbidding former President Donald Trump from making statements about potential witnesses or disparaging comments about the prosecutors.
As my MSNBC colleague Jordan Rubin explained, the Republican defendant “will be prohibited from making statements about potential witnesses and their testimony. Trump will also be prohibited from attacking prosecutors from Smith’s office, their families or any courthouse staff.”
That said, as NBC News’ report added, as part of the same partial gag order, Chutkan went on to note that she would not impose restrictions on Trump’s statements about Washington, D.C., and its residents, nor on statements criticizing the government or the Justice Department generally.
Not surprisingly, the frontrunner for the GOP’s 2024 nomination was not pleased. At a campaign event in Iowa, held just a few hours after the judge’s order, Trump whined, “I’ll be the politician in history that runs with a gag order where I’m not allowed to criticize people. Can you imagine this?” He added, “It’s so unconstitutional.”
The idea that the former president is now prohibited from “criticizing people” is demonstrably false. In fact, the judge in the case seemed to anticipate Trump’s inevitable complaints and took care to explain the situation.
“My review of past statements made by Mr. Trump in particular, as well as the evidence that they have led to harassment and threats for the people he has targeted, persuades me that without this restriction there is a real risk that witnesses may be intimidated or unduly influenced and that other potential witnesses may be reluctant to come forward lest they be subjected to the same harassment and intimidation,” Chutkan explained in court at the end of the proceedings.
She added, “Now, let me be clear: Mr. Trump may still vigorously seek public support as a presidential candidate, debate policies and people related to that candidacy, criticize the current administration, and assert his belief that this prosecution is politically motivated. But those critical First Amendment freedoms do not allow him to launch a pre-trial smear campaign against participating government staff, their families, and foreseeable witnesses. No other criminal defendant would be allowed to do so, and I am not going to allow it in this case.”
And yet, the defendant nevertheless spent the day repeating the “unconstitutional” talking point, out loud and online, as if it had merit.
I can imagine some might wonder whether Trump has a point. After all, you and I are free under the First Amendment to say what we please about the federal election interference case. Shouldn’t the defendant be afforded the same opportunities?
Actually, no. As Chutkan explained to one of Trump’s lawyers, “Mr. Trump is a criminal defendant. He is facing four felony charges. He is under the supervision of the criminal justice system, and he must comply with the conditions of release. He does not have the right to say and do exactly as he pleases.”
What’s more, it’s worth pausing to appreciate the fact that Trump generally defines “unconstitutional” as “stuff he doesn’t like.” When Robert Mueller was appointed as special counsel, Trump said it was “unconstitutional.” When he was impeached the first time, that was labeled “unconstitutional,” too.
To hear the former president tell it, the vote-counting process in 2020 was also “unconstitutional,” as were his criminal indictments.
It’s likely that someone on his legal defense team has tried to explain to him what “unconstitutional” means, but it might be time for a refresher.
As for the partial gag order, Trump has announced plans to appeal. Watch this space.