Judges and prosecutors seem so afraid of violating Donald Trump’s First Amendment rights that they are undermining the integrity of the criminal justice system by seeking and issuing fundamentally flawed gag orders that fail to prohibit attacks on the presiding judges and main prosecutors.
For example, in the election interference case brought against Trump by Manhattan District Attorney Alvin Bragg, Judge Juan Merchan issued a gag order preventing Trump from making statements—or directing others to make statements—about witnesses, prosecutors, court staff and their relatives if he intends to interfere with their work on the case as well as any comments about jurors.
The order failed to prohibit any comments about D.A. Bragg or Judge Merchan, and Trump immediately exploited this loophole by naming and criticizing Merchan’s adult daughter on Trump’s social media platform Truth Social. Bragg’s office has now sent a letter to the judge asking him to either clarify that his order does encompass his own family and D.A. Bragg’s family, or expand it to cover their families.
Merchan’s order is not unique in exempting judges and main prosecutors, as it closely tracked Judge Tanya Chutkan’s order in the case brought by Special Counsel Jack Smith—as well as Judge Arthur Engoron’s order in the civil fraud trial brought by New York State Attorney General Letitia James after Trump made various false public claims about the judge’s law clerk.
There is no reason gag orders should engender such fear. As Professor Tonja Jacobi has written: “A gag order (or non-dissemination order) may seem like a core interference with the First Amendment right to free speech, and an especially worrisome one because the First Amendment is most protective against “prior restraint”—banning speech in advance rather than punishing it subsequently. But every right in the Constitution must be balanced against others.
Gag orders are often justified by the Sixth Amendment right to a fair trial process, which includes the right to be judged by an impartial jury. A fair trial could be undermined by revelation of information, especially in high-profile cases such as the four criminal indictments and multiple civil suits against the ex-president.”
Admittedly, the courts and prosecutors are in unfamiliar territory with Trump, since gag orders usually are imposed to protect a defendant against excessive pre-trial publicity which might prejudice the right to a fair trial by tainting the jury pool. Trump, however, wants as much pre-trial publicity as possible as he is using the criminal trials to fundraise as well as to support his Presidential campaign.
Most defendants don’t insult and smear prosecutors and judges since there is little to gain by pissing off the people bringing charges against you and the person who may sentence you. Trump is not worried about that though, because he is using the criminal charges to buttress his presidential campaign.
One can query whether this is a truly a novel political strategy, or one just born out of necessity since no presidential candidate has ever had to campaign while facing 91 felony charges brought by both federal and state prosecutors. So, rather than the usual tight-lipped response of “we look forward to our day in court” while the loyal spouse stands by his side, Trump rants and raves alone without the presence of a spouse by his side (perhaps his standing sans Melania Trump is a choice also borne out of necessity).
Gag orders also are not typically used to ensure the safety of trial participants much less that of judges and prosecutors. Defendants do not explicitly publicly threaten witnesses, jurors, judges, prosecutors because that would lead to them being prosecuted with new charges.
Trump also does not make explicit threats of harm. Rather, the dangerousness of his remarks arise from the proven track record of his remarks inciting violence: January 6, the Walmart mass shooter whose manifesto invoked Trump, the threats received by all the judges in his cases, the swatting of Special Counsel Jack Smith on Christmas, the white powder mailed to Bragg—the list goes on. These incidents reflect deeper problems than just Trump mouthing off, but in the context of court cases gag orders are a tool to lessen danger if only judges will apply it without hesitation or favor.
The courts get the obvious safety problem posed by Trump’s remarks for those lacking personal security details. That’s why they imposed orders banning Trump from talking about court staff like Judge Engoron’s law clerk, witnesses and their families, jurors and their families. But there is harm—grave harm—in allowing Trump to attack judges and prosecutors, as well as their families, through his speech. These obviously pose safety issues for the families, and D.A. Bragg’s office is trying to address this by asking Merchan to clarify or expand his order.
Trump’s lawyers counter with the argument that any gag order on Trump violates the First Amendment, arguing that basically anything Trump says falls into the class of political speech since he is running for office.
That’s too much deference to the First Amendment. It’s not absolute. Threatening to kill someone is not protected speech. Nor is handing a note to a bank teller that says “give me the money.” Moreover, even if a gag order turns out to have violated the First Amendment there is zero effect upon the integrity of a criminal case.
“There is a no-brainer difference between criticism of a public official, and Trump criticizing the officials tasked with prosecuting, judging, and potentially sentencing him.”
This isn’t like a Fourth Amendment violation where illegally seized evidence will be suppressed, a Fifth Amendment violation where a coerced confession will be thrown out, or a Sixth Amendment violation of the right to counsel that could result in a conviction being overturned. The remedy for a gag order violating the First Amendment would simply be to limit the scope of the order—as the D.C. Circuit did with Judge Chutkan’s original order—or simply dissolve it altogether with no effect on the outcome of the criminal case.
Judges themselves and the main prosecutors should not be free game for Trump. Sure, they have security and may justifiably feel that as public officials it’s part of the job to be criticized. But there is a no-brainer difference between criticism of a public official, and Trump criticizing the officials tasked with prosecuting, judging, and potentially sentencing him. That undermines the cases—it taints jury pools and intimidates witnesses, who justifiably might fear that that if Trump is free to target judges and prosecutors then they as ordinary citizens will be at grave risk of being threatened as election workers Ruby Freeman and Shaye Moss experienced after being falsely accused by Trump lawyer Rudy Giuliani of election fraud.
This machismo of letting Trump attack them serves no good purpose. It doesn’t protect the First Amendment. It doesn’t protect the trials. It doesn’t protect our country. Judges and prosecutors might have security details to protect them, but the only protection the rest of us have—and the only protection our democracy has—is the courage of public officials to do their jobs. And that means gagging Donald Trump. Completely.
Shan Wu is a former federal prosecutor who served as counsel to Attorney General Janet Reno
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