The saying, “I may not like what you say, but I will die to defend your right to say it,” captures an American ethos that was, until recently, taken for granted. The death of that ethos and its underlying principle, the freedom of speech, is plain to see in the brazen, unprecedented effort to silence Donald Trump by the government of his rival.
Days ago, Trump was slapped with a gag order by Tanya Chutkan, the Washington D.C. judge handling the Biden Justice Department’s “election subversion” case. Although audacious, the gag order is quite predictable. Chutkan and Star Chamber prosecutor Jack Smith have shown contempt for Trump and his rights, and by extension, the common rights of the people, throughout this entire process.
According to Chutkan, Trump’s political campaign “does not give him carte blanche to vilify … public servants who are simply doing their job.” But the freedom to disparage the government is at the very core of American democracy. This nation was founded by men who took up arms against a tyrannical king. So what if Trump calls Jack Smith a deranged thug? Smith has the force of the state on his side. He is not a spectator in this and he is not a victim. Trump is the one facing the loss of his liberty.
Trump has not made any threats. What he has done is relentlessly criticize the credibility of multiple overlapping efforts by prosecutors aligned with the opposing political party to cripple him financially and deprive him of his freedom. (Trump faces 91 charges in all).
It is laughable to contend that an impartial process is at risk of being tainted by Trump, when the process is clearly so politicized to begin with. Over 90 percent of potential jurors in Washington D.C. voted for Trump’s opponent in 2020. Given the very low odds that Trump will receive any kind of impartial hearing, it is imperative that he is permitted to freely voice his grievances in the court of public opinion. Trump’s free speech rights are especially important because of the impending election, in which he is almost certain to face Biden again.
But Chutkan and Smith are determined, with blithe arrogance, to ignore the extraordinary political context of the case. Chutkan accuses Trump, with remarkable irony, of waging a pretrial “smear campaign.” Smith is allowed to call Trump a traitor and an insurrectionist, but Trump is required to stay silent about his tormentor. Likewise, Trump’s lawyers are not permitted to use “political” language in court characterizing this most political of cases as a show trial. What else should they call it?
There is nothing at all ordinary about the prosecution of the leading opposition candidate by the government of his arch political rival, over charges, no less, dealing with a past election contest between the two that continues to divide the nation. (Notwithstanding Smith’s “independence” from Biden, the fact is that he answers to Biden and his Justice Department). It is disingenuous to pretend, as Chutkan has done, that Trump can be treated like just another citizen, although it would be an improvement to being treated like an enemy of the state.
An impartial judge would check an overzealous prosecutor, not rubber stamp his efforts to trample on the accused. But Chutkan has made her feelings about Trump rather clear, through a number of temperamental outbursts in court and her begrudging, perfunctory acknowledgment that he has rights, too. (As of this writing, the judge has magnanimously suspended the gag order while Trump appeals).
In a previous case dealing with the January 6th committee, Chutkan grandiosely said of Trump, “presidents are not kings.” True, but Trump is an American citizen, a former president, and a potential future one. The effort to silence him is an affront not only to Trump and his rights, but to all Americans and the right of the people to select leaders of their choosing.