Hate Trump All You Like, The Gag Order Is Still Wrong

This week, U.S. District Court Judge Tanya Chutkan overseeing United States v. Donald Trump issued a gag order prohibiting a leading presidential candidate, Donald Trump, from engaging in speech aimed at “government staff,” among others, during his trial.

Listen, I understand the disdain some conservatives feel for the former president. I share the sentiment. But if you’re cheering on a judge who’s inhibiting political speech on rickety grounds, you’re no friend of the “democracy” or the Constitution.

“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,” Chutkan explained. “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.”

Who is Chutkan to dictate the contours of a presidential candidate’s political speech? What if one of the “participating government staff” or a family member is compromised by partisanship? Moreover, preemptively suggesting that without gagging, Trump will engage in a “smear campaign” is as prejudicial to the case as any of the inflammatory things Trump has thrown around. It implies that any accusation now aimed at prosecutors is untrue.

Trump contends that he is being railroaded by special counsel Jack Smith, the longtime federal prosecutor who works on behalf of Democrats and President Joe Biden. You might believe the special counsel is a chaste defender of Lady Justice, but there’s ample evidence that partisan considerations are in play. Fears of a politicized Justice Department are real. As we speak, the head of the Democratic Party is being mollycoddled by the state in a very similar case involving classified documents.

Whatever the case, the Justice Department now plays a big part in Trump’s campaign for the presidency — and probably his legal case, as well. If the state’s accusations can be spread throughout the media before a trial, why can’t the defendant speak openly, as well?

In the name of fairness, Chutkan contends that Trump does not enjoy unfettered First Amendment rights because he might intimidate witnesses. It’s already illegal to intimidate witnesses. Charge him if he does it. Laws already exist to cover all the other premises Smith has used to rationalize the gag order.

The notion that a jury pool is going to be impartial in a trial involving a divisive former president, who is not only a leading contender for the presidency but one of the most famous people on Earth, is absurd. And the notion a D.C. jury pool will be impartial when it comes to Trump is fantastical. There is little that can be done about it. But further gagging the defendant only feeds, at the very minimum, the perception that this is all politically motivated.

Establishment media informs us that the gag order is just “narrow” and meant to “protect the integrity of the trial and the jury pool.” In her Solomonic wisdom, Chutkan cut the state’s request in half. A “narrow” gag order limiting free speech is still a gag order limiting free speech. The fact that Smith was seeking even broader limitations only makes Trump’s claims more plausible.

Smith has also argued that Trump should not be afforded “special treatment” because he’s a candidate. He’s right. No one’s right to defend themselves or to engage in speech should be inhibited, not even during trials (though any good lawyer will tell clients, for their own good, to shut up). Still, gag orders are almost always an unconstitutional prior restraint. For years, the American Civil Liberties Union and similar groups argued the same.

I’m sure many people simply believe Trump deserves it. Think, though, about the precedent: Administrations can now launch prosecutions against political rivals — calibrated to take place in favorable cities and timed to coincide with elections — and then demand gag orders be implemented on those running for office. If you think they won’t do it to others, you haven’t been paying attention.

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