‘Uncharted Territory’: Obama-Appointed Judge’s Gag Order On Trump Is The First Of Its Kind, Legal Experts Say

• Judge Tanya Chutkan issued a gag order against former President Donald Trump Monday restricting his statements about special counsel Jack Smith, his staff, witnesses and court personnel. 
• Placing a gag order on a presidential candidate is unprecedented, legal experts said.
• “Not only have we never before had a former president or leading presidential candidate being indicted in four different felony cases with 91 counts across those four cases, but we’ve also never, to my knowledge, had a leading presidential candidate who has had a gag order issued against him basically limiting what he’s allowed to say on the campaign trail,” Zach Smith, Heritage Foundation legal fellow and former assistant U.S. attorney, told the Daily Caller News Foundation.

Judge Tanya Chutkan’s decision to place a gag order on former President Donald Trump is unprecedented, legal experts said Monday.

Chutkan issued a gag order following a hearing Monday restricting Trump’s statements about special counsel Jack Smith, his staff, witnesses and court personnel. While less expansive than the order requested by prosecutors, legal experts said it is nevertheless the first gag order to be placed on a presidential candidate and will present problems for the former president on the campaign trail, making a swift appeal likely.

Zach Smith, Heritage Foundation legal fellow and former assistant U.S. attorney, told the Daily Caller News Foundation this is a “very serious matter.”

“Not only have we never before had a former president or leading presidential candidate being indicted in four go a gag order issued against him basically limiting what he’s allowed to say on the campaign trail,” he told the DCNF.

Mike Pence, an opponent in the 2024 Republican presidential race, is among the witnesses Trump is restricted from speaking about. Chutkan specified that Trump can comment on Pence, just not as it pertains to the case — though Smith notes the case is “a major part” of the coming election.

Lawyer and former federal prosecutor Bill Shipley suggested on Twitter that it is “quite possible” the gag order becomes the vehicle that launches Trump’s case to the Supreme Court via its emergency docket.

“There could be two avenues — both a direct appeal as part of the criminal case, and also a civil action seeking an injunction of the order on the basis that it is a violation of his constitutional rights as a candidate and part of the campaign,” he said, noting this would likely be “a first of its kind” action.

“Yes — there is case law that says a defendant in a criminal case can have his First Amendment rights to speak about the case curtailed,” he wrote. “But there has never been a case involving a candidate for POTUS being put in that position during the course of the campaign.”

Smith said it’s possible that Trump will wait until there is an alleged violation of the gag order to appeal, but he suspects Trump will do so sooner.

“For better or worse, we’re in uncharted territory,” Smith told the DCNF.

Lawyer and Townhall columnist Kurt Schlichter called the order a “disgraceful affront to the First Amendment.”

“Barring a criminal defendant from publicly criticizing the prosecutor and judge is clearly unconstitutional,” Article III Project founder and president Mike Davis wrote on Twitter. “Gagging a presidential candidate is what happens in third-world Marxist hellholes. The DC Circuit must fix DC Obama Judge Tanya Chutkan’s clearly erroneous ruling.”

Trump promised on Monday that he would appeal the order.

“I’ll be the only politician in history that runs with a gag order where I’m not allowed to criticize people,” Trump said in a speech Monday. “We’ll appeal it, and we’ll see.”

Chutkan announced her order from the bench Monday and has not yet issued a written order, though she is expected to do so soon.

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