Gag Order on Trump in Election Case Leaves More Hard Questions

It took Judge Tanya S. Chutkan three rounds of written filings over the last six weeks and more than two hours of courtroom arguments this week to sort through the issues surrounding the gag order she imposed on former President Donald J. Trump.

And that may have been the easy part.

Judge Chutkan released the formal written order on Tuesday. She detailed in three brief pages how Mr. Trump has now been barred from making public comments targeting the members of her court staff, the special counsel Jack Smith and any members of his staff, as well as “any reasonably foreseeable witnesses” in the sprawling federal criminal case in which the former president stands accused of seeking to overturn the 2020 election.

But the order left unanswered the hardest questions involved in gagging Mr. Trump. Judge Chutkan will still have to determine on a case-by-case basis which, if any, of the former president’s statements violate her ruling. And she will have to decide how to punish him if they do.

Mr. Trump’s legal team swiftly gave notice on Tuesday that he was appealing the order. Within hours of Judge Chutkan’s announcement at a hearing on Monday in Federal District Court in Washington that she would be imposing the order, Mr. Trump had already attacked it as an assault on his First Amendment rights.

“She doesn’t like me too much — her whole life is not liking me,” he said that night at a campaign event in Iowa.

He then misrepresented the contents of Judge Chutkan’s ruling.

“You know what a gag order is?” Mr. Trump, the current front-runner for the 2024 Republican nomination, asked the crowd. “You can’t speak badly about your opponent.”

In fact, Judge Chutkan’s order leaves Mr. Trump free to criticize President Biden, along with his administration and the Justice Department. It also allows him to attack “the campaign platforms or policies” of Mike Pence, who served as his vice president, is likely to be a witness in the case and is also a rival to Mr. Trump in the 2024 primary.

Judge Chutkan’s order leaves Mr. Trump free to attack her, too. It also says that he can proclaim that he is innocent and continue to assert, as he has done repeatedly, that his prosecution on charges of trying to stay in power against the will of the voters is “politically motivated.”

Still, the language in the order is broad enough in places that it could result in conflicts over whether certain statements by Mr. Trump are covered by it.

Near the end of the order, for example, Judge Chutkan wrote that Mr. Trump was not allowed to “target” the various participants in the case. That word could be construed as barring a wide array of statements, not just those that were “disparaging and inflammatory or intimidating” — the category prosecutors had asked for.

The text of the order also said that Mr. Trump was barred from attacking any potential witnesses “or the substance of their testimony.” The lack of detail about how to define those attacks left open the possibility that any kind of negative remarks about a witness — even those that were not related to the case — could be in violation of the order.

Judge Chutkan’s order leaves Mr. Trump free to criticize President Biden, along with his administration and the Justice Department. Credit…Doug Mills/The New York Times

There were also ambiguities during the hearing itself.

At one point on Monday, Molly Gaston, a prosecutor, appeared to give conflicting answers to a hypothetical question posed by Judge Chutkan: Would Mr. Trump be in violation of the gag order if he declared that “Crooked Joe Biden” had approved of or directed the indictment in the case as a way to interfere with the election next year?

Ms. Gaston’s initial answer was “yes” as she suggested that the order as proposed would bar Mr. Trump from lying about Mr. Biden’s role in the case. Mr. Trump, she told the judge, could not make any statements “falsely suggesting that President Biden directed this prosecution, which he did not.”

But when Judge Chutkan drilled down on the issue, Ms. Gaston seemed to give a different answer. This time, she said that if Mr. Trump asserted that Mr. Biden had directed the Justice Department to go after him, it would not be in violation of the order.

That was because “Joe Biden is not a party, witness, attorney, court personnel or potential juror” in the case, Ms. Gaston said, and so he would not be covered by the order.

Mr. Trump has often sought, without evidence, to portray Mr. Smith as acting at Mr. Biden’s direction by bringing the three conspiracy charges that sit at the heart of the case. And only hours before Judge Chutkan released the written version of her order, he leaned directly into the ambiguous issue that she had explored on Monday with Ms. Gaston.

“Crooked Joe Biden told the DOJ to Indict TRUMP hoping that it would help him in his campaign against me and the Republicans,” he wrote on Tuesday morning on Truth Social, his social media platform. “In other words, he indicted his Political Opponent.”

Mr. Trump has also made a habit of calling Mr. Smith “deranged” and of describing members of his team as “thugs.” Moreover, he has attacked potential witnesses in the case, including Gen. Mark A. Milley, the former chairman of the Joint Chiefs of Staff.

After General Milley gave several interviews that were critical of Mr. Trump, the former president suggested that he had committed treason and that in the past he might have faced execution.

Judge Chutkan argued that Mr. Trump should not be permitted to make attacks like those for a simple reason: They put people at risk.

“Undisputed testimony cited by the government demonstrates that when defendant has publicly attacked individuals, including on matters related to this case,” she wrote, “those individuals are consequently threatened and harassed.”

But if Judge Chutkan’s order was clear that Mr. Trump’s attacks could be menacing or even lead to violence, it was silent on the issue of what she would do to enforce it.

A violation of a gag order is treated like the violation of any court order — as a matter of contempt of court, which could result in a reprimand, a fine or imprisonment. But how that would play out is complicated, legal experts say.

One type of contempt is “civil contempt” — which can also arise in a criminal case. It is typically used to coerce future compliance with an order, like making a recalcitrant witness stop defying a subpoena and provide testimony. The other type is “criminal contempt,” which is more focused on punishing past defiance of an order and vindicating the court’s authority.

Past disputes over gag orders have most often arisen in the context of gagging defense lawyers. Margaret C. Tarkington, a law professor at Indiana University, Indianapolis, and a specialist in lawyers’ free-speech rights, said that normally — though not always — judges had treated violations of gag orders as a matter of criminal contempt.

That matters because in federal court, judges cannot unilaterally impose a fine or order someone imprisoned for criminal contempt. Rather, such an allegation is treated as a new offense that requires the appointment of a prosecutor and another trial — including a right to a decision by a jury.

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