On Sunday, U.S. District Judge Tanya Chutkan reinstated her limited gag order on Donald Trump in the federal election subversion case pending against the former president. Unlike many other legal issues before Chutkan, the gag order is an extremely close call. The First Amendment creates a very high bar for prosecutors to meet. Even some organizations and people normally critical of Trump have criticized the gag order as unconstitutional, including the American Civil Liberties Union and the noted First Amendment scholar Erwin Chemerinsky.
But in our view Trump’s own statements during the litigation of the gag order have further tilted that fine balance. Chutkan correctly recognized this in lifting her own stay, and the gag order should now survive a likely review by appellate courts.
While First Amendment protections are rightly cherished, they are not absolute.
The government first petitioned for a gag order in September, alerting the court to incendiary and intimidating statements from Trump that targeted special counsel Jack Smith, his staff and potential witnesses like former Vice President Mike Pence. Nowhere was Trump’s language plainer than his infamous threat after being indicted, in all caps: “IF YOU GO AFTER ME, I’M COMING AFTER YOU.”
On Oct. 16, Chutkan issued the gag order prohibiting Trump, and any party in the case, “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.” Chutkan ruled that such statements posed a “significant and immediate risk” of intimidating witnesses and harassing or threatening attorneys and staffers — a danger that was “largely irreversible.”
But four days later, she granted Trump’s motion to stay the order pending his appeal. In the short time since the gag order was stayed, Trump has unleashed a number of threatening statements, notably including those directed at his former chief of staff Mark Meadows. He was at the center of nearly all of Trump’s allegedly criminal behavior to overturn the results of the 2020 election, making him almost certainly a key witness in the upcoming trial.
In response to a report from ABC News that Meadows had been granted immunity for his testimony, Trump implied that, if true, Meadows was lying and had been coerced. (NBC News has not confirmed ABC News’ report, and an attorney for Meadows called it “largely inaccurate.”) “Some people would make that deal,” Trump wrote, “but they are weaklings and cowards, and so bad for the future of our Failing Nation. I don’t think that Mark Meadows is one of them, but who really knows?” Trump’s statement appears to be yet another instance of witness intimidation, as these words have the potential to influence Meadows against cooperating.
Trump’s conduct over the period during which the gag order was temporarily stayed takes a hard freedom of speech question that could have gone either way and provides significant support for gagging him. While First Amendment protections are rightly cherished, they are not absolute. They must yield when it comes to the protection of witnesses, court personnel and proceedings.
The Supreme Court ruled in Sheppard v. Maxwell that courts have an obligation to “take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.” As the government pointed out in its brief supporting the order, “[a]t times, this obligation may require courts to impose limited and reasonable restrictions on parties to a criminal case — including defendants — if their conduct risks prejudicial interference with the due administration of justice.” Trump’s statements since the stay was granted, including his attacks on and attempted intimidation of key witnesses like Meadows, pose an immense and immediate risk of tampering with the case.
To be sure, the judge’s order presents some issues that will lead to significant wrangling on appeal.
The Supreme Court also ruled in Gentile v. State Bar of Nevada that courts may restrict a party’s extrajudicial statements if those statements present a “substantial likelihood of material prejudice,” provided that the court’s order is narrowly tailored to prevent comments likely to affect the trial’s outcome or influence the jury pool. Chutkan has satisfied that standard by limiting the gag order to attacks on attorneys, court staff and foreseeable witnesses. Trump can still say whatever he wants about the DOJ generally, his political opponents (including President Joe Biden) and even the judge herself.
To be sure, the judge’s order presents some issues that will lead to significant wrangling on appeal. For example, though Chutkan forbids targeting witnesses, she does not define the word “target.” As the ACLU pointed out in an amicus brief, Chutkan could have clarified what she intended by “target” — which, as the ACLU posits, could be “narrowly limited to its most menacing implications, perhaps prohibiting true threats or incitement against witnesses or court staff.” Still, it is not as if the word “target” is so esoteric as to be incomprehensible. As the judge pointed out in her opinion Sunday night, the term has a clear meaning in everyday use — to go after a particular individual by “attacking them, subjecting them to ridicule or criticism, or otherwise attempting to affect them.” Trump’s statements over the past week plainly and directly targeted Meadows, and were intended to interfere with his participation in the trial. Trump’s own behavior has significantly undermined what was a close legal question. We understand the criticisms of Chutkan’s order, and we strongly support Trump’s right to speak freely about almost everything. The importance of that universal American right is only magnified when the person being singled out is a presidential candidate. As Chemerinsky has correctly noted, we want to be particularly careful when preventing an individual from criticizing or vilifying government officials. But free speech is not absolute and in some cases, tightly focused limitations are appropriate to protect the administration of justice and the witnesses and officials who are part of it. This is one of those cases. Trump’s team has already announced that its next move will be to seek emergency review of the gag order in the D.C. Circuit Court of Appeals. Given the sensitivity of the constitutional implications, Trump may get another temporary stay before the appellate court has a chance to consider Chutkan’s ruling. But at the end of the day, Trump will likely lose his appeal — ironically because of the very record he has created since the stay was entered. As has often been the case in Trump’s interactions with the law, he may be his own worst enemy. And Chutkan’s gag order will ultimately survive because it protects the integrity of the judicial process from Trump’s dangerous behavior.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Joshua Kolb
Joshua Kolb is counsel and manager of Rapid Legal Response at State Democracy Defenders Action. 
