By Michael Kunzelman, Lindsay Whitehurst and Alanna Durkin Richer
The federal judge overseeing the 2020 election subversion case against Donald Trump in Washington imposed a narrow gag order on him on Monday, barring the Republican former president from making statements targeting prosecutors, possible witnesses and the judge's staff.
The order from U.S. District Judge Tanya Chutkan marks a milestone moment in the federal case that accuses Trump of illegally conspiring to overturn his 2020 election loss to Democrat Joe Biden.
Chutkan said Trump is entitled to criticize the Justice Department generally and assert his belief that the case is politically motivated, but she said Trump can’t mount a “smear campaign” against prosecutors and court personnel.
“No other criminal defendant would be allowed to do so, and I’m not going to allow it in this case," Chutkan said.
Chutkan, who was appointed by President Barack Obama, said she would impose “sanctions as may be necessary” if the gag order is violated, but she wasn't more specific. Judges can threaten gag order violators with fines or jail time, but jailing a presidential candidate could prompt serious political blowback and pose logistical hurdles.
While ending the stream of Trump’s harsh language may make the case easier to manage, it could also fuel Trump’s claims of political persecution. Trump’s campaign had already seized on the proposed gag order in fundraising appeals, and Trump had falsely characterized it as an attempt to prevent him from criticizing Biden, who became president in January 2021.
The order could end a line of attack that Trump has made central to his campaign as he vies to win the GOP presidential nomination in 2024. But 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 America's highest public office.
Trump's lawyers may try to challenge the gag order on appeal, and legal experts have said the issue may end up before the U.S. Court. Trump’s lawyer John Lauro fiercely opposed any gag order, saying it would unconstitutionally hinder Trump's political speech.
“He is allowed to make statements the prosecution doesn’t like. That’s part of living with the First Amendment,” said Lauro, who declined to comment on the ruling after the hearing.
A Trump spokesperson called the judge's decision “an absolute abomination.”
Smith’s team argued that Trump knew that his incendiary remarks — calling the justice system “rigged,” Chutkan a “Trump-hating judge,” and prosecutors a “team of thugs” — could inspire his supporters to threaten or harass his targets. Prosecutors said it is part of Trump’s effort to erode the public’s faith in the judicial system just like they say he sought to undermine confidence in the 2020 election by spreading lies of fraud after he lost to Biden.
"What Mr. Lauro is saying is the defendant is above the law and he is not subject to the rules of this court like any other defendant is,” prosecutor Molly Gaston told the judge. “All this order would do is prevent him from using the campaign as an opportunity to make materially prejudicial statements about this case.”
Lauro accused prosecutors of “seeking to censor a political candidate in the middle of a campaign.” But the judge shot back that Trump “does not have a right to say and do exactly as he pleases.”
“You keep talking about censorship like the defendant has unfettered First Amendment rights. He doesn’t,” Chutkan said. “We’re not talking about censorship here. We’re talking restrictions to ensure there is a fair administration of justice on this case."
Chutkan also read aloud a slew of statements from Trump, and she repeatedly raised concerns that his remarks could inspire violence.
“If you call certain people thugs enough times doesn’t that suggest, Mr. Lauro, that someone should get them off the streets?” she asked Trump's lawyer.
The defense also pressed the judge to delay the trial, currently scheduled to begin in March. But she rejected that idea, saying “this trial will not yield to the election cycle.”
The Chutkan hearing came on the heels of a judge overseeing Trump’s civil fraud trial in New York imposing a more limited gag order prohibiting personal attacks against court personnel following a social media post from Trump that maligned the judge’s principal clerk.
Monday was the first time Trump’s lawyers had appeared before Chutkan since she denied Trump’s request to recuse herself from the case, which alleges Trump illegally schemed to overturn his 2020 election loss to Biden. Trump has denied any wrongdoing.
The defense had claimed Chutkan’s comments about Trump in other cases raised questions about whether she had prejudged his guilt. But Chutkan said her comments were mischaracterized and there was no need for her to step aside.
Prosecutors noted in a recent motion that Trump’s incendiary rhetoric continued even after their initial gag order request. They cited critical comments about witnesses referenced in the indictment — such as former Attorney General William Barr — and a social media post suggesting that Mark Milley, the retired chairman of the Joint Chiefs of Staff, had committed treason and should be executed.
Richer reported from Boston.
