I have been thinking about NR’s editorial on Judge Chutkan’s gag order on Donald Trump in his D.C. criminal trial. What to make of the order I’m not sure. But the editorial is not illuminating. It rests on assumptions one should not grant and does not engage Chutkan’s reasoning. These very defects are, however, clarifying in an unexpected way: They illustrate the nature of the gathering potential disaster — to which there is no longer any obvious solution — that Donald Trump and the Republican Party are forcing on us.
Here is what Chutkan ordered, as quoted from the order:
All interested parties in this matter [i.e., the trial], including the parties and their counsel, are prohibited 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.
And here is what Chutkan said she was not ordering:
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. [Chutkan wrote this before Pence suspended his campaign.]
The central contention of NR’s editors is that the order is harmfully arbitrary. The trial “involves the sitting president’s administration prosecuting his potential opponent over the endgame of their prior election contest”; “the topic of the trial was already the subject of widely publicized congressional hearings held by the president’s party in the city where the trial will be held, and was the centerpiece of that party’s multi-million-dollar TV ad campaigns throughout 2022.” And so “to limit what [Trump] says about the case necessarily involves drawing arbitrary lines regarding what a political figure can say about a politically relevant matter.” And because that is bad, the gag order is bad.
On their own terms, the editors are correct. It is arbitrary as a political matter to let Trump speak about the policy platform of Mike Pence, rival presidential candidate, but not about the role of Mike Pence, vice president, on January 6, 2021.
But policing “what a political figure can say about a politically relevant matter,” as the editors put it, is not what Judge Chutkan took herself to be doing. Her aim, in her own words, was “to safeguard the integrity of these [trial] proceedings.” And by that standard her order may be mistaken, but it is not arbitrary.
Chutkan was looking at Trump as a criminal defendant — one who happened to be running for president, but a criminal defendant no less for that. And she was looking at Mike Pence as a likely witness in the trial — one who happened to be a political figure, but no less a likely witness for that. Pence’s campaign platform was not a likely topic of testimony in the trial. His role on January 6 was. Chutkan thus drew a nonarbitrary distinction between what was and what was not likely to be a topic of testimony. If it can make sense, as a way of preserving the integrity of trial proceedings, for a judge to impose prior restraint on a defendant’s speech about a likely topic of testimony, then it can potentially make sense for Chutkan to gag Trump about January 6, but it cannot make sense for her to gag him about Mike Pence’s policy platform.
The editors’ contention that the order “goes far further than necessary to protect against speech targeting non-public figures such as court clerks or jurors” fails to establish that the gag order is arbitrary by its own standard. Chutkan was not trying to protect against speech only if it targeted non-public figures. A witness in a trial is a witness in a trial. If a gag order is meant to protect witnesses from intimidation and harassment, what would seem to be arbitrary is to protect only those witnesses who happen to be political figures.*
The editors note that Biden is not gagged. But why would Biden be gagged? He is not on trial or likely to testify in Trump’s trial.
The editors note that Bill Clinton was not prohibited from criticizing Kenneth Starr. But Clinton was not a criminal defendant. There was no occasion to consider whether the integrity of nonexistent trial proceedings required him to be gagged about the nonexistent likely testimony of nonexistent likely witnesses.
The editors assert that, “whatever one thinks of the substance, the argument that the ‘deep state’ is out to get [Trump] is a central part of his campaign.” No doubt, but this ignores Chutkan’s statement that Trump is free to say “that his prosecution is politically motivated.”
The editors briefly grant Chutkan’s criterion for the sake of argument: “As for the integrity of the proceedings, are we really supposed to worry that Trump’s ravings are poisoning the jury pool . . . in Washington, D.C.? Are we supposed to indulge the pretense that Democrats and the press will, in the interim, adhere to monastic silence about January 6, the charges, and Trump’s culpability?” Unfortunately for this argument, Chutkan does not offer jury-pool poisoning as a reason for the gag order. She says instead that she wants to prevent intimidation of witnesses and court personnel. Unassailably, she writes that when Trump “has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.” She therefore “finds that such statements pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.”
The editors relevantly observe: “It’s true, of course, that Trump’s language is harsh and insulting.” But then irrelevantly: “That doesn’t mean it’s tantamount to incitement to violence.” This is irrelevant because Chutkan did not make “incitement to violence” the threshold for limiting Trump’s statements. Rather she spoke of “harassment,” “intimidation,” and “threats,” none of which need involve violence or incitement to it.
* * *
That the lines Chutkan drew are not arbitrary does not show that they are correct. Again, I’m not sure. I feel, and think everyone should, a reflex of skepticism toward restrictions on the right of anyone to speak, all the more when that person is a criminal defendant and the restrictions concern details of the accusations against him.
Skepticism asserted, let’s note several things that seem relevant to judging the order’s correctness.
First, gag orders are not unprecedented on defendants who have used threatening or harassing language or tactics against judges, court personnel, or witnesses. Recent examples (from a Washington Post article) of such defendants include Roger Stone and Sam Bankman-Fried, who were gagged even though their conduct did not constitute incitement to violence.
Second, the rules governing the D.C. district court grant Chutkan great latitude to issue a gag order in “a widely publicized and sensational criminal” case. In such conditions,
the Court, on motion of either party or on its own motion, may issue a special order governing such matters as extrajudicial statements by parties, witnesses and attorneys likely to interfere with the rights of the accused to a fair trial by an impartial jury, the seating and conduct in the courtroom of spectators and news media representatives, the management and sequestration of jurors and witnesses, and any other matters which the Court may deem appropriate for inclusion in such an order. [“Any other matters”! See LCrR 57.7(c) here. Quoted in part in a different Washington Post article.]
Third, legal precedent is murky. Chutkan quotes Supreme Court opinions which say that “freedom of discussion . . . must not be allowed to divert the trial from the very purpose of a court system to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures” (Sheppard v. Maxwell) and that “although litigants do not surrender their First Amendment rights at the courthouse door, those rights may be subordinated to other interests that arise in this setting”: “For instance, on several occasions this Court has approved restriction on the communications of trial participants where necessary to ensure a fair trial for a criminal defendant” (Seattle Times Co. v. Rhinehart). But the cases she cites are not close analogues to Trump’s criminal prosecution.† And here you can read Isabel Farhi, a lawyer and a scholar at Yale Law School, explain that “there’s no consensus” among circuit courts “on the applicable test to assess the constitutionality of gag orders on the parties” to a trial other than that such gag orders are less restrictive than limitations on the media’s right of access.
Fourth, Chutkan gives every indication of thinking that she is treating Trump like any other defendant. “The bottom line,” she writes, “is that equal justice under law requires the equal treatment of criminal defendants; Defendant’s presidential candidacy cannot excuse statements that would otherwise intolerably jeopardize these proceedings.” In a remark at a hearing prior to the issuing of her order, Chutkan said, “I cannot imagine any other case where a defendant is allowed to call the prosecutor ‘deranged,’ or a ‘thug,’ and I will not permit it here simply because the defendant is running a political campaign.” (Note how these quotations distinguish — in just the way we described above — what is essential for her purpose from what is accidental and irrelevant to it: Trump is, for Chutkan, essentially a defendant and accidentally a politician.)
* * *
I would not bother to chart how NR’s editorial sails right on by the reasoning of the gag order, only to conclude that Chutkan could nevertheless be wrong, were it not all an illustration of something important, which is the incommensurability of courtroom standards and presidential-campaign standards and the consequent difficulty, lacking as we do a univocal language, of even talking clearly about the nature of the Trump problem in all its dimensions.
It would be more accurate and complete, and would generate better arguments, to recognize that we confront a collision of completely different practices and of the rules appropriate to them than to assume political standards of judgment into courtrooms and then rise to shame judges for not sharing the assumption. It is similarly category-confusing to think, as many commentators seem to, that if Trump’s post-election conduct was awful and damaging, then naturally prosecutors should throw the kitchen sink at him — almost as if one had to savor the prospect of Trump’s imprisonment in order to prove one’s hatred of January 6 and all that led to it. Are these really the same issue? And should we expect the correct political judgment of Trump and the correct legal judgments of him to be equally obvious?
The political horribleness of Trump’s post-election conduct is not in reasonable dispute. There is no evidence of voter fraud that would have swung the election from Biden to Trump; this is a matter of demonstrable fact; Trump did not have the election stolen from him; rather he tried to steal it.
But the soundness of prosecutors’ theories of the law and judges’ rulings in trials often is a matter of reasonable debate. Prosecutors have a degree of discretion not only in whether to prosecute an individual but in how to do it if so. They make decisions according to their own ratiocinated but fallible interpretations of statutes and their own subjective inclinations to seek more convictions or longer sentences at the cost of invoking contestable theories. Judges are variable in similar ways. Consider how often they disagree, how few Supreme Court decisions are 9–0, or your own experience of finding two opposed arguments reasonable even though you judge one stronger than the other by standards less than Euclid’s.
As a sole example, consider the charge that Trump conspired to violate the civil rights of voters. On one hand, the framers of the 14th Amendment and the authors of Section 241 of Title 18, on which the charge depends, intended to secure the rights of black Americans after the Civil War and cannot plausibly be thought to have anticipated the case against Trump. On the other hand, the relevant constitutional and statutory language makes no mention of race, and election fraud has long been prosecuted as a civil-rights violation, often in nonracial contexts. This is an interesting debate. It requires us to ask whether we should interpret according to original intent as psycho-historical fact that may include purposes and intentions not written into the text, or should interpret, alternatively, according to a strict textualism that asks merely what someone of the time would take the words to mean (the words being, to repeat, perfectly general and containing no reference to race). We might also ask whether those who gave us the 14th Amendment and Section 241 wished to leave open a door to their wider application by declining to have them refer to a particular race or historical context. But these interesting questions have exactly nothing to do with what one thinks of Trump’s post-election conduct. One can be appalled to the core by what Trump did while remaining unsure about the scope of the 14th amendment and Section 241 or holding only a lukewarm opinion about it.
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Uncertain or lukewarmth-compatible legal questions now have large political consequences. Suppose you had to decide whether to prosecute Trump for a civil-rights violation. He is a danger to the republic, so get him if you can? Or better not to try, since if you fail you will make him more powerful by letting a court appear to vindicate him? Can you resist the influence of such extrajudicial worries?
If Trump is acquitted in the January 6 trial, he will not in fact have been vindicated of moral and political culpability for the events of that day; his hostile refusal of the legitimate transition of power was and remains a political high crime or misdemeanor regardless of whether it was a criminal offense. For just this reason, the proper tool to address it lay with Congress, which declined to use that tool when the Senate acquitted Trump in his second impeachment trial and thereby guaranteed that he would continue to disfigure our politics rather than be neutralized as unelectable.‡
Suppose that the prosecutor has taken the risk of filing defensible but contestable charges against Trump and you are the judge who drew the misfortune of presiding over his trial. You will find at every turn that pressures and public judgments foreign to those of the courtroom press on you. Justice is not justice if it treats a defendant differently because he is of political consequence and his possible offense happened to involve political conduct. The law in its majestic blind impartiality is not supposed to care whom it helps and whom it harms. But now the editors of National Review want you to import an extrajudicial standard into your reasoning — in effect, to take the blindfold off Lady Justice so that she may say to the defendant, “Oh, it’s you! Why didn’t they tell me? For you we have to make exceptions.” Maybe she should offer a preemptive pardon, too, before the trial begins and regardless of the defendant’s attitude toward the alleged crime.
As the claims of politics disfigure the courtroom, so the claims of the courtroom disfigure politics. Or course it is absurd as politics for Trump to be gagged about January 6.§ Of course it evokes farce or catastrophe to imagine a presidential candidate jailed for contempt, imprisoned as a felon, or absurdly having pardoned himself once elected. And of course if Trump is convicted and wins the presidency we will have the makings of a constitutional crisis. But if the legalization of politics is bad, the politicization of the law is not thereby good.
The law is already being politicized, you say — that happened the moment charges were filed, perhaps the moment a special counsel was appointed. Even so, at the same moment a criminal inquiry — with its own internal logic, excellent, poor, or questionable — began. The prosecution of Trump may be politically motivated, but nothing could more completely politicize the law than for judges to start reasoning as ersatz statesman, ersatz party bosses, or anyone else who does not wear a blindfold. It is the difference between letting politics influence legal reasoning and discarding legal reasoning for politics.
Judge Chutkan and others may err as they attempt to cope with this unprecedented problem, and they are by no means beyond criticism. But to make them primary objects of scorn is distracting. Primary responsibility for the novel collision injuries that our political and legal systems are suffering must fall, in the end, on one man.
Quasi-marginalia:
*See, however, a counterargument from Erwin Chemerinsky, dean of Berkeley’s law school, who opposes the gag order. He writes in the Los Angeles Times that those whom “Trump has attacked are former high-level officials such as Pence and Atty. Gen. William Barr, . . . [but] there is little reason to believe that Pence or Barr would be intimidated by Trump.” Perhaps not, but this is speculative and makes for a blurrier line than holding simply that witness harassment and intimidation are witness harassment and intimidation. We have a handful of statements from retiring or former legislators (Mitt Romney, Peter Meijer) that their colleagues privately wished to impeach and convict Trump but, fearing for their safety and that of their families, shrank from doing so. And in general the staggering cowardice or cynicism of Republican politicians on the topic of Trump’s post-election conduct should not fill us with confidence that political figures are specially resistant to demagogic pressure tactics.
†In Sheppard v. Maxwell (1966), the Court held that pre-trial publicity had prejudiced a defendant’s right to a fair trial. In Seattle Times Co. v. Rhinehart (1984), discovery in a civil case identified donors to a private organization, a lower court prohibited the publishing of the donors’ names, and the Supreme Court held that the prohibition did not violate the First Amendment. Neither opinion addressed speech by a defendant. Chutkan quotes a passage in the Seattle Times majority opinion that cites opinions in other cases (“on several occasions this Court has approved . . .”), but they too are not close analogues to Trump’s case. In Nebraska Press Assn. v. Stuart (1976) and Oklahoma Publishing Co. v. District Court (1977), the Court overruled prohibitions on what the press was allowed to report about criminal trials. In Gulf Oil Co. v. Bernard (1981), it upheld the right of plaintiffs and attorneys in a class action to communicate with potential members of the class without having received permission from the court to do so.
‡This may even have been a disservice to Trump. Had he been convicted by the Senate and thereby neutralized politically, he might not have brought down this rain of criminal charges motivated, one presumes, at least in part by a fear of his political return. And a more generous judgment of him might then have been possible. It may be possible to see Trump as someone transferred to an alien milieu without having internalized, from long practice, the standards it demanded. In the worlds of television and New York real estate, a certain lying or truth-indifferent showmanship and a willingness to bend the law may be common and comparatively tolerable. In the matter of honoring established practices for the transition of political power, they are not, even if they also do not make us think of such a politician as a conventional criminal worthy of imprisonment. (“Established practices”: I would prefer that electors chosen by state legislatures without having pledged themselves to any presidential candidate were free to act independently in selecting the president. But that is not the system we have. There is a world of difference between the original constitutional design for presidential selection and a situation in which (a) we have amended that design so that electors are bound by state popular votes and (b) coup-plotting state legislators propose alternative slates of pledged electors in response to a demagogue’s manipulation of mass sentiment. The difference is even diametric in that the latter situation involves the destruction of the very thing that the original design was meant to achieve, the insulation of presidential selection from popular passions and those who skillfully stoke and direct them.)
§Might the subjective standard of whether a judge finds speech harassing or intimidating be unexpectedly preferable to the objective cordoning off of a topic area?
(Note: I have updated this post to correct a mistaken reference to Mitt Romney as a “former” legislator.)