The reason you have not heard of a gag order on par with the one imposed on former President Trump is that it is highly unusual. Normally, in a criminal proceeding, there are no gag orders. To the extent they exist, they typically only bind the lawyers, who are admonished to adhere to the rules of professional conduct. Rarely—as in almost never—are criminal defendants forced into a gag order on such spurious grounds as they might “vilify and implicitly encourage violence against public servants who are simply doing their jobs.”
In fact, precedent almost uniformly emphasizes familiar First Amendment principles, which limit the court’s authority, including disfavor towards “prior restraints” and “content-based restrictions” on speech.
In a case involving the prosecution of a congressman, the Sixth Circuit federal court of appeals noted that “such broadly based restrictions on speech in connection with litigation are seldom, if ever, justified. Trial judges, the government, the lawyers and the public must tolerate robust and at times acrimonious or even silly public debate about litigation.”
The Sixth Circuit emphasized that criminal defendants are already very much disadvantaged vis a vis the government, and that any court restrictions must accommodate this asymmetry. “A criminal defendant awaiting trial in a controversial case has the full power of the government arrayed against him and the full spotlight of media attention focused upon him. The defendant’s interest in replying to the charges and to the associated adverse publicity, thus, is at a peak. So is the public’s interest in the proper functioning of the judicial machinery.”
Other circuits follow a less restrictive rule, but even those emphasize the need for any such orders to be narrowly tailored to accomplish a substantial government interest.
Courts typically have broad powers to enforce discipline in their courtrooms and over lawyers, but preemptively stifling a defendant from “making statements targeting prosecutors, possible witnesses and court staff” has a very broad reach. After all, isn’t every member of Congress, every January 6 defendant, and every single person Trump spoke to about the 2020 election a potential witness?
Since part of Trump’s presidential campaign rests on the view that the 2020 election was rigged, how can he effectively run for president in 2024 under this type of restriction?
The D.C. Jury Pool Starts Off Very Biased
The gag order also is very unlikely to be effective in achieving its stated purpose. The judge suggests a fair trial is possible, but that, without the gag order, Trump will influence the process and potentially poison the views of the jury pool.
A bit of a reality check is in order.
Trump is the former American president, who lived in the White House for four years. Everyone in Washington D.C. has an opinion about the former president, as he is a controversial and larger-than-life character. That said, he is more unpopular in D.C. than in any voting district in the country; in 2020, the District achieved an election result worthy of Stalin: 93% for Joe Biden. The only likely impact of Trump’s intemperate speech would be to further prejudice Washington D.C. jurors against him, as his “mean tweets” and general tone seem to be part of why the government class hates him so.
The special prosecutor picked this jurisdiction for a reason. It is practically a “rotten borough” when it comes to politically charged prosecutions of Republicans. This is why the small number of January 6 defendants who went to trial in Washington D.C. have gone down hard.
This all reminds us why the Declaration of Independence mentioned, among its catalog of complaints against King George, that he was “depriving us in many cases, of the benefits of Trial by Jury” and “transporting us beyond Seas to be tried for pretended offences.”
Then, as now, such procedural artifices ensured hostile “peers” would serve on a jury, rigging the outcome of a criminal trial.
The Gag Order Affects the Right of Voters to Hear Trump’s Point of View
In addition to Trump being deprived of a jury of his peers, he is being deprived of his essential First Amendment freedoms. This does not merely affect Trump; voters have an independent right to hear the unfettered political speech of a presidential candidate.
The real reason the D.C. managerial class cabal wants to impose a chilling effect on Trump’s free speech is the 2024 election. Trump is the presumptive Republican nominee, and it increasingly appears he may have a lead over Joe Biden.
One of Trump’s main complaints has been that this prosecution is unfair, politicized, and constitutes a severe form of election interference. In defense of the process, many have suggested that Judge Chutkan’s failure to give the Special Counsel everything he asked for shows that she is fair and that this order is appropriately limited. But, even in its current form, the order is extreme and unconstitutional. It restricts, among other things, discussing witnesses and certain officials, which may include people running for office or working for the Biden administration.
It is one thing to say the court must be respected during proceedings. But restricting a criminal defendant’s discussion of witnesses, which presumably includes every member of Congress that was involved in the 2020 electoral college count, is extreme. How would Trump know who is included or not as a witness at this early date? How could he be sure his conduct did not veer into dangerous territory by criticizing, say, Merrick Garland or Jack Smith’s left-wing, filmmaker wife? Everything Trump says, from this point forward, risks imprisonment for contempt during the pendency of the trial.
The gag order implicates the rights of parties not before the court; namely, the voters. Some of us agree this is an unjust and highly politicized prosecution and the act of a biased judge. We have a right to hear what the defendant has to say about it. And we are now being deprived of that right in ways that are visible—such as Trump’s use of a spokesman for his comments on the order—and ways that are invisible, such as whatever things he is not saying on account of the order.
The Deep State is Attacking Our Right to Elect the President of Our Choosing
Trump has been harassed and persecuted since his original run in 2016. Some of the highest figures in government, the head of the FBI and senior intelligence officials, acting with the blessing of President Obama, made up lies about Trump and his ties to Russia in order to defeat his campaign.
Shortly after this cloud lifted, congressional Democrats impeached him the first time for looking into Hunter and Joe Biden’s corruption in Ukraine. Like so many other Trump scandals, it now appears Trump’s instincts were correct, as Hunter Biden was the central node of an elaborate pay-to-play scam involving a corrupt seven-figure job for Hunter at a Ukrainian natural gas company, which chiefly compensated him for access to Joe Biden. In the end, Trump escaped conviction for exercising this core foreign policy authority.
The media and Congressional Democrats would then blame Trump for the events of January 6, even though he had a right to challenge election results and have a rally, and even though he urged protesters to be nonviolent. The second impeachment proceedings continued after the formal transfer of power on January 20, but he escaped conviction there as well.
Now that he is running again, the Department of Justice has unleashed a fanatical war crimes prosecutor to pursue unorthodox charges arising from Trump’s contest of the 2020 election. What the Deep State could not accomplish in two impeachments, they are now trying to accomplish with a rigged process before an irredeemably partisan D.C. jury.
You do not have to be a Trump voter to be concerned about these developments. For all the talk of Our Democracy™, one of its essential features is supposed to be majority rule. The people pick the President through the electoral college, and he accrues significant authority therefrom because he is the only nationwide elected official.
We do not have a system, such as in Iran or the Soviet Union, where candidates and parties must get pre-approval for their conformity to regime priorities. But for the Deep State and the entrenched elected officials, democracy consists chiefly of ratifying the substantive outcomes they want. Changing our foreign policy on Russia or Israel, changing our immigration rules, or changing how much the federal government spends are all affronts to this understanding of democracy as consisting of a particular set of substantive outcomes.
This is why, even though he was improbably elected in 2016, Trump’s critics referred so frequently to him as a threat to Our Democracy™. In this upside-down world, arresting the nominee of one of the two major parties and preventing him from becoming president through a rigged legal process is somehow protecting democracy, even though the whole purpose of these actions is to deprive voters of their preferred choice.
The oligarchy that runs our country is rigging another election because Trump is the most significant threat to their power. The gag order is just another facet of this program.
Christopher Roach is an adjunct fellow of the Center for American Greatness and an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, Chronicles, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.