Trump’s Rights and Wrongs

Today D.C. federal Judge Tanya Chutkan imposed a limited gag order on Trump, prohibiting him from making statements targeting prosecutors, possible witnesses and court staff. AP News noted that “it may be only the beginning of an unprecedented fight over what limits can be a placed on the speech of a defendant who is also campaigning for America’s highest public office.”

Calling the gag order “unconstitutional,” Trump vowed to appeal it.

In a separate AP piece, the authors argued that Trump’s “incendiary rhetoric” puts the judge in a “tricky position”: “She must balance the need to protect the integrity of the legal proceedings against the First Amendment rights of a presidential candidate to defend himself in public.”

Let’s start with claims made by Trump that by gagging him, the court is interfering with his right to free speech and trying to interfere with his campaign. Essentially, what Trump means is that he should be given special consideration because he is running for president. He is saying that because he is running for office, he should be able to say whatever he wants to about anyone, including the judge, prosecutor(s), jurors, and witnesses.

Even in the world outside a criminal case, this would not be true. For one thing, speech is not protected by the First Amendment if it is defamatory — that is, if it is false, publicly disseminated, negligent or with reckless disregard, and harmful.

Speech is also not protected by the First Amendment if it is an integral part of criminal conduct (see also here) or if it incites violence. Being a political candidate doesn’t exempt you from these restrictions.

But the gag order is a narrow one. Trump is still free to express his opinions about the justice system, about Washington, even about President Biden. What he may not do is undermine “the administration of justice,” according to Chutkan.

Chutkan’s phrasing resembles Jack Smith’s September 15 motion, which was titled the “Government’s Opposed Motion to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings.”

In the motion, Smith wrote that by making “extrajudicial statements” (statements not made in court) specifically against “the District of Columbia, the Court, prosecutors, and potential witnesses,” Trump is likely “to materially prejudice the jury pool, create fear among potential jurors, and result in threats or harassment to individuals he singles out.”

Smith added that the D.C. federal court has previously recognized its obligation to prevent “what the Supreme Court called in Sheppard v. Maxwell‘a carnival atmosphere of unchecked publicity and trial by media rather than our constitutionally established system of trial by impartial jury.’”

So what do these phrases mean? “The integrity of legal proceedings,” the orderly “administration of justice,” or “material prejudice to these proceedings”?

As Smith suggests in his motion (but does not directly state), these phrases refer to another right that belongs to Trump, which Trump himself is seeking to prejudice: the Sixth Amendment right to a fair trial.

Trump has a constitutional right to a fair trial! Does he really want to undermine that right? Is he really asking the government to discard his right to a fair trial just so he can say what he wants about them?

Maybe he does. I imagine Trump would be perfectly happy to force the court to allow him to taint the trial so he can have his free speech AND THEN appeal on the basis that they hadn’t given him a fair trial!