UPDATE (Oct. 20, 2023, 11:28 a.m. ET): The judge overseeing Donald Trump’s civil fraud trial in New York on Friday threatened “serious sanctions” against Trump or to “possibly imprison” him after learning Trump’s campaign website kept up for days a post attacking a law clerk despite the judge imposing a gag order against Trump earlier this month.
Donald Trump got gag orders in two cases this month alone. Obviously, it’s absurd that the former president and leading GOP presidential candidate has multiple criminal and civil cases, let alone that two judges have recently felt the need to restrain his menacing actions within those proceedings.
But because the limited orders won’t stop Trump from making statements ranging from ridiculous to dangerous, it’s worth keeping in mind what these orders do — and don’t do.
The first one came earlier this month, in the ongoing New York civil fraud trial. Judge Arthur Engoron barred the parties (but really Trump) from posting or publicly speaking about the judge’s staff after Trump reposted on his social media platform about Engoron’s law clerk.
The second one came this week, in the federal election interference case. Special counsel Jack Smith had laid out the former president’s remarks attacking various actors across the legal system. Judge Tanya Chutkan in Washington agreed something had to be done, even if in a more limited fashion than Smith wanted. She barred the parties (but again, really Trump) from:
making any public statements, or directing others to make any public 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.
But while Chutkan’s order is broader than Engoron’s, she made clear what it doesn’t cover, writing on Tuesday:
This Order shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.
As you can see, that leaves a lot of options to say threatening things that aren’t captured by Chutkan’s order. The judge likely drew that line to ensure that it complied with the First Amendment in her view. Trump is appealing it anyway, his counsel having argued it’s wrong to restrict a presidential candidate. We’ll see how that goes.
But even after Engoron imposed his order, Trump still posted about his adversary in the fraud trial, New York Attorney General Letitia James, sharing a link showing her address. That raised questions about whether that violated the gag order.
The answer is “no,” to the extent the order covers Engoron’s staff and James isn’t on it. It wouldn’t violate Trump’s Washington gag either, because the orders apply in their respective cases. Had Trump similarly posted about Smith, he could be in trouble. Still, the question of what trouble he’d be in for any violation is unclear. Trump’s statements in the days, weeks and months ahead will raise questions about whether he violated these orders. The answer won’t necessarily be “yes,” no matter how unhinged a given statement it is. It depends on which case it comes in, and whom it targets. Again, the crucial question is what the consequences will be for any violation, which will almost surely come. More broadly, it’s important to keep in mind not only the limited nature of these orders, but their limited purpose within the context of these cases. As Chutkan wrote Tuesday, she felt the need to impose restrictions to protect “the integrity of these proceedings.” They’re not intended to, and can’t, protect the country at large. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
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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