The Trump Gag Order Should Be Struck Down..Jonathan Turley

[mystery-ak]

   October 20, 2023   
The Trump Gag Order Should Be Struck Down

Below is my column in The Hill on the imposition of a gag order on former President Donald Trump by U.S. District Judge Tanya Chutkan. Despite my long-standing criticism of Trump’s personal attacks on judges and critics, this gag order should be curtailed or struck down on appeal. While the odds tend to favor the lower court in such orders, there is ample reason to object to the scope and language of the order. The ill-defined bar on criticizing the prosecution or witnesses (including one of Trump’s opponents in this election) raises serious free speech concerns. It is also unlikely to have any appreciable impact on the heated public debate over this and other prosecutions of the presidential candidate. Much of this campaign will focus on the alleged weaponization of the criminal justice system. While Trump is still allowed to criticize the case generally, the vague order cuts too deeply into his right to criticize the prosecutor, the judge, and witnesses in the case in this election.

Here is the column:

The imposition of a gag order on former President Donald Trump was overwhelmingly applauded by pundits and press alike. Journalists described the order from U.S. District Judge Tanya Chutkan as “narrow” and “limited.” Most of them lionized Chutkan as an “unflinching” and “no-nonsense”  judge who would not tolerate Trump’s penchant for personal attacks and reckless rhetoric.

However, this order should concern everyone who values freedom of speech. While the odds may favor Chutkan on appeal, this order should be overturned as overbroad and dangerous.

For years, many of us have criticized Trump for his personal attacks on judges and opponents alike. Undeterred, Trump has continued such inflammatory attacks on “deranged” Special Counsel Jack Smith and the “biased, Trump-hating Judge” Chutkan. Smith has pushed aggressively for a gag order, even though one of the major issues in Trump’s campaign is whether the Biden Administration has weaponized the criminal justice system against him and other Republicans.

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https://jonathanturley.org/2023/10/20/the-trump-gag-order-should-be-struck-down/

[Kamaji]

No, it shouldn’t. 

[Smokin Joe]

If this isn't coming up before a jury, why not?
The judges have already made up their minds.
Who is there left to sway?

[Maj. Bill Martin]

If this isn't coming up before a jury, why not?
The judges have already made up their minds.
Who is there left to sway?

The gag order is a question of law,not fact,so it is decided without a jury.  Trial judge has made her ruling but this is an issue that can be appealed before trial.

I think the parts of it prohibiting comments about employees of the court will be upheld.  I'd guess that the parts prohibiting comments about the prosecutor will be struck down.  Not sure about witnesses.

[DefiantMassRINO]

Attempted witness intimidation, juror intimidation, judicial intimidation, and prosecutor intimidation are not covered by the First Amendment.

Trump is double-dog-daring judges to throw him in jail ... he may get that wish if he continues his defiance and contempt.

[Right_in_Virginia]

Judge lifts Trump gag order in federal 2020 election and Jan. 6 case
NY Post, Oct 20, 2023

District Judge Tanya Chutkan on Friday temporarily lifted the gag order she issued against former President Donald Trump earlier this week that prevented him from criticizing prosecutors, court staff or their families.

Chutkan, who is overseeing the 77-year-old former president’s 2020 election interference case, stayed the partial gag order, which also barred Trump from discussing potential witnesses or testimony, in order to give his defense team and the Justice Department more time to file briefs related to 2024 Republican presidential candidate’s request for an extended pause of the order.
 
"Upon consideration of Defendant’s opposed 110 Motion for Stay Pending Appeal, Request for Temporary Administrative Stay, and Memorandum in Support, it is hereby ORDERED that the court’s 105 Opinion and Order is administratively STAYED to permit the parties’ briefing and the court’s consideration of Defendant’s Motion,” Chutkan, 61, wrote in a short brief.

She further ordered that special counsel Jack Smith’s team file any opposition to Trump’s motion for an extended stay of the gag order by Oct. 25, and that Trump’s team respond by Oct. 28.

Under the partial gag order, all parties in the case are barred from making statements that “target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.”

Chutkan indicated in court that Trump can still broadly criticize the Justice Department and suggest that the case against him is politically motivated.

https://nypost.com/2023/10/20/judge-lifts-trump-gag-order-in-federal-2020-election-and-jan-6-case/

[berdie]

Attempted witness intimidation, juror intimidation, judicial intimidation, and prosecutor intimidation are not covered by the First Amendment.

Trump is double-dog-daring judges to throw him in jail ... he may get that wish if he continues his defiance and contempt.

I hadn't thought of it this way, but his taunting may be for just that reason. Imagine the support he would gain...and the rockin' and rollin' of his base. Oh my!

[Right_in_Virginia]

Timely reminder:  The crime is the indictment itself.

[Kamaji]

Timely reminder:  The crime is the indictment itself.

[Maj. Bill Martin]

Attempted witness intimidation, juror intimidation, judicial intimidation, and prosecutor intimidation are not covered by the First Amendment.

I don't think that is what is going on.  I think he's just trying to say that the entire system is corrupt, that's he's innocent, and that what they are doing is the real crime.

You may disagree with that, but I think that is protected.  Staff may be different simply because they are not exercising any independent judgment, and have no authority. 

But hell...do you think this judge and prosecutor are biased, and that this is a political vendetta?  I sure as hell do.  And I also think these indictments are a central issue in the 2024 Presidential election cycle.  To me, that has to be protected.  I don't think him being permitted to criticize the DOJ "generally" cuts it.  This particular prosecutor is the guy who decided to bring these particular charges.  How can he not fairly be criticized?

I think this judge is nervous about that, which is why she issued that stay.  She's not at all sure that order gets upheld, and if she tries to gag Trump but get reversed, that reversal will appear to validate what he's been saying in terms of bias.   He'll start going off about how that proves she's biased, and make her look much worse before the trial even begins.

Also worth noting that she can't gag the public, commentators, political allies, etc..  We all can say all the stuff about her, the prosecutor, the witnesses, etc., that she's saying Trump himself can't say.  So exactly what is that order protecting?  Everyone else can say it, but he can't?

[Right_in_Virginia]

 

[LMAO]

I don't think that is what is going on.  I think he's just trying to say that the entire system is corrupt, that's he's innocent, and that what they are doing is the real crime.

You may disagree with that, but I think that is protected.  Staff may be different simply because they are not exercising any independent judgment, and have no authority. 

But hell...do you think this judge and prosecutor are biased, and that this is a political vendetta?  I sure as hell do.  And I also think these indictments are a central issue in the 2024 Presidential election cycle.  To me, that has to be protected.  I don't think him being permitted to criticize the DOJ "generally" cuts it.  This particular prosecutor is the guy who decided to bring these particular charges.  How can he not fairly be criticized?

I think this judge is nervous about that, which is why she issued that stay.  She's not at all sure that order gets upheld, and if she tries to gag Trump but get reversed, that reversal will appear to validate what he's been saying in terms of bias.   He'll start going off about how that proves she's biased, and make her look much worse before the trial even begins.

Also worth noting that she can't gag the public, commentators, political allies, etc..  We all can say all the stuff about her, the prosecutor, the witnesses, etc., that she's saying Trump himself can't say.  So exactly what is that order protecting?  Everyone else can say it, but he can't?

Yup

As long as he’s not making any direct threats, I see no problem