The federal judge handling the 2020 election subversion case against Donald Trump in Washington imposed a strict gag order on Monday, prohibiting the former Republican president from making statements directed at prosecutors, potential witnesses and the judge's staff.
The order by U.S. District Judge Tanya Chutkan marks a milestone in the federal case accusing Trump of illegally conspiring to overturn his 2020 election loss to Democrat Joe Biden.
Chutkan said Trump has the right to criticize the Justice Department generally and affirm his belief that the case is politically motivated, but he said Trump cannot mount a “smear campaign” against prosecutors and court staff.
"No other criminal defendant would be allowed to do that, and I'm not going to allow it in this case," Chutkan said.
Chutkan, who was appointed by President Barack Obama, said she would impose "whatever sanctions are necessary" if the gag order is violated, but was not more specific. Judges can threaten gag order violators with fines or jail terms, but jailing a presidential candidate could lead to serious political consequences and pose logistical obstacles.
While ending Trump's stream of harsh language may make the case easier to handle, it could also fuel accusations of Trump's political persecution. Trump's campaign had already taken advantage of the proposed gag order in its fundraising appeals, and Trump had falsely characterized it as an attempt to prevent him from criticizing Biden, who took office in January 2021.
The order could end a line of attack that Trump has made central to his campaign as he vies to win the GOP presidential nomination in 2024. But it may be just the beginning of an unprecedented fight over what limits can be placed on the speech by a defendant who is also campaigning for America's highest public office.
Trump's lawyers could try to challenge the gag order in an appeal, and legal experts have said the matter could end up before the US Court. Trump's lawyer, John Lauro, strongly opposed any gag order, saying it would unconstitutionally impede Trump's political speech.
“You are allowed to make statements that the prosecution does not like. That's part of living by the First Amendment,” said Lauro, who declined to comment on the ruling after the hearing.
A Trump spokesperson called the judge's decision "an absolute abomination."
Smith's team argued that Trump knew his inflammatory comments — calling the justice system “rigged,” Chutkan a “Trump-hating judge” and prosecutors a “team of thugs” — could inspire his supporters to threaten or harass their targets. Prosecutors said he is part of Trump's effort to erode the public's faith in the justice system, just as they say he sought to undermine confidence in the 2020 election by spreading lies of fraud after losing to Biden.
“What Mr. Lauro is saying is that the defendant is above the law and is not subject to the rules of this court like any other defendant,” prosecutor Molly Gaston told the judge. "The only thing this order would do is prevent him from using the campaign as an opportunity to make materially damaging statements about this case."
Lauro accused prosecutors of “seeking to censor a political candidate in the middle of a campaign.” But the judge responded that Trump “does not have the right to say and do exactly as he pleases.”
“You keep talking about censorship as if the defendant has unlimited First Amendment rights. It's not like that,” Chutkan said. “Here we are not talking about censorship. “We are talking about restrictions to ensure that there is a fair administration of justice in this case.”
Chutkan also read aloud a series of Trump's statements and repeatedly expressed concern that his comments could inspire violence.
“If you call certain people thugs enough times, doesn't that suggest, Mr. Lauro, that someone should get them off the streets?” he asked Trump's lawyer.
The defense also pressured the judge to delay the trial, which is scheduled to begin in March. But he rejected that idea, saying “this trial will not yield to the election cycle.”
Chutkan's hearing came immediately after a judge overseeing Trump's civil fraud trial in New York imposed a more limited gag order prohibiting personal attacks on court staff following Trump's online post. social workers who defamed the judge's principal secretary.
Monday was the first time Trump's lawyers appeared before Chutkan since she denied Trump's request to recuse herself from the case, which alleges Trump illegally conspired to overturn his 2020 election loss to Biden. Trump has denied wrongdoing.
The defense had claimed that Chutkan's comments about Trump in other cases raised questions about whether she had prejudged his guilt. But Chutkan said her comments were misinterpreted and there was no need for her to step aside.
Prosecutors noted in a recent motion that Trump's inflammatory rhetoric continued even after his initial request for silence. They cited critical comments about witnesses referenced in the indictment, such as former Attorney General William Barr, and a social media post suggesting that Mark Milley, the retired chairman of the Joint Chiefs of Staff, had committed treason and should be executed.