We’re about half a year out from Donald Trump’s scheduled criminal trial in Washington, D.C., over alleged election interference. One of the looming questions is whether U.S. District Judge Tanya Chutkan will impose a gag order on the former president, to guard against his menacing statements that prosecutors claim threaten to undermine the proceedings.
But on Monday, Trump’s lawyers tried to ignore their client’s immense power and, relatedly, his willingness to intimidate opponents and activate some of our country’s most violent lunatics — see, e.g., Jan. 6, 2021 — and argued instead that the real danger is coming from “the Biden Administration” and, of course, “the media.”
To get a flavor of the latest Trump filing, here’s an early passage from its 25 pages:
Tossing these foundational principles aside, the Biden Administration charged President Trump — the leading contender in the 2024 Presidential Election — for statements he made as president. Now, keenly aware that it is losing that race for 2024, the prosecution seeks to unconstitutionally silence President Trump’s (but not President Biden’s) political speech on pain of contempt.
You get the idea.
(Of course, Trump isn’t president, he isn’t charged with making statements, he isn’t charged by “the Biden administration” in any event, and special counsel Jack Smith — who isn’t Joe Biden, that’s the whole point of using Smith here — isn’t running for president.)
Ultimately, Chutkan bears the responsibility of being the adult in the room.
To be sure, the germ of a free speech argument is lurking within the Trump team’s histrionics. Those histrionics just make it more difficult to take any argument he has seriously. But his lawyers know they don’t have to be completely serious throughout their filing, because, ultimately, Chutkan bears the responsibility of being the adult in the room. However poor — or poorly made — Trump’s argument is, she has to seriously consider if, and how exactly, she’ll choose to limit the speech of a man running for president.
As with any issue that’s litigated in any of Trump’s four criminal prosecutions, he has the same rights as everyone else. But applying that uncontroversial maxim to this admittedly unique situation — an unhinged person running for president while facing criminal charges stemming from his attempt to overturn the last election, which he lost — still makes Chutkan’s task unenviable. That’s true for many of the decisions she has had, and will still have, to make throughout the case. Perhaps her greatest practical consideration here is knowing she could very quickly be put in the position of enforcing any order she imposes.
But if Chutkan does impose such an order, it won’t be the first or last time that happens in a criminal case. Of course, one outcome that Trump wouldn’t want is if, in the face of his intractable antisocial behavior, Chutkan deems it appropriate to move up his scheduled March 4 trial start date. But before the Barack Obama appointee renders this momentous decision, the Justice Department, which is pushing for the restrictions, can reply to Trump’s response by Saturday. Chutkan can then rule, if she doesn’t set a hearing first. Finally, it’s important to remember that this litigation is taking place against the backdrop of Trump’s attempt to get Chutkan recused. She may well want to resolve his longshot recusal motion before deciding on the gag order. That’s just one of the many decisions the judge will have to make in this historic case.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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