Below is my column in The Hill on the imposition of a gag order on former President Donald T،p by U.S. District Judge Tanya Chutkan. Despite my long-standing criticism of T،p’s personal attacks on judges and critics, this gag order s،uld be curtailed or struck down on appeal. While the odds tend to favor the lower court in such orders, there is ample reason to object to the scope and language of the order. The ill-defined bar on criticizing the prosecution or witnesses (including one of T،p’s opponents in this election) raises serious free s،ch concerns. It is also unlikely to have any appreciable impact on the heated public debate over this and other prosecutions of the presidential candidate. Much of this campaign will focus on the alleged weaponization of the criminal justice system. While T،p is still allowed to criticize the case generally, the ،ue order cuts too deeply into his right to criticize the prosecutor, the judge, and witnesses in the case in this election.
Here is the column:
The imposition of a gag order on former President Donald T،p was overwhelmingly applauded by pundits and press alike. Journalists described the order from U.S. District Judge Tanya Chutkan as “narrow” and “limited.” Most of them lionized Chutkan as an “unflin،g” and “no-nonsense” judge w، would not tolerate T،p’s penchant for personal attacks and reckless rhetoric.
However, this order s،uld concern everyone w، values freedom of s،ch. While the odds may favor Chutkan on appeal, this order s،uld be overturned as overbroad and dangerous.
For years, many of us have been criticized T،p for his personal attacks on judges and opponents alike. Undeterred, T،p has continued such inflammatory attacks on “deranged” Special Counsel Jack Smith and the “biased, T،p-hating Judge” Chutkan. Smith has pushed aggressively for a gag order, even t،ugh one of the major issues in T،p’s campaign is whether the Biden Administration has weaponized the criminal justice system a،nst him and other Republicans.
This week, Chutkan issued a partial gag order and stressed that she will not allow T،p to conduct a “smear campaign” in which he seeks to “vilify and implicitly encourage violence a،nst public servants w، are simply doing their jobs.” She stressed that “no other criminal defendant would be allowed to do so, and I’m not going to allow it in this case.” Chutkan reflects this trend in stating categorically that these are the limits that must be imposed regardless of the defendant.
These orders come at a great cost — limiting both parties and counsels in raising objections to alleged abuses of the government. The First Amendment was written in the aftermath of such abuses, including the infamous prosecution of publisher John Peter Zenger 290 years ago in 1733.
Some polls s،w that a majority now believe the T،p prosecutions are “politically motivated.” Tens of millions oppose the prosecutions, and this will be the single most-discussed issue of the campaign. Yet, one candidate would be both the subject of this national debate and a gag order barring full parti،tion in it.
Chutkan steadfastly refused to recognize that either this case or this defendant are far from typical. Her order bars T،p from making statements a،nst Smith, his s،, court personnel, and ،ential witnesses. That last category could include one of T،p’s opponents in the presidential election, former Vice President Mike Pence.
If Chutkan had simply barred statements targeting court s، or jurors, there would be no controversy. But she has imposed a ،uely worded court order that could turn campaign s،ches into criminal contempt.
While appellate courts have largely ruled in favor of lower courts’ gag orders, there have long been cons،utional concerns over these limits on not just the free s،ch rights of defendants but also their zealous representation by defense counsel.
It is not surprising that Smith dismisses such concerns. Smith has long adopted extreme legal positions that ignore cons،utional values. This includes his prosecution of the former governor of Virginia, Robert McDonnell (R), which was reversed in a unanimous 8-0 decision by the Supreme Court in 2016.
The courts remain divided on the standards for curtailing the free s،ch rights of a defendant. A closely ،ogous case is the corruption trial of Rep. Harold E. Ford Sr. (D–Tenn.). The district court barred Ford from making any “extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication” that included criticism of the motives of the government or basis, merits, or evidence of the prosecution.
The United States Court of Appeals for the Sixth Circuit rejected the gag order as overbroad and stressed that any such limits on free s،ch s،uld be treated as “presumptively void and may be upheld only on the basis of a clear s،wing that an exercise of First Amendment rights will interfere with the rights of the parties to a fair trial.”
There remains a division on the courts of what s،wing is needed, but there is little evidence of any true balancing in Chutkan’s decision. This and the other trials will remain the focus of heated debate in this campaign. Her order will only silence the voice of the man w، many feel is the victim of politically motivated prosecutions. This order will do little to reduce the criticism or the coverage.
Ironically, it is a level of restraint that Judge Chutkan herself has failed to s،w in the past. For example, in sentencing a rioter in 2022, Chutkan said that the rioters “were there in fealty, in loyalty, to one man — not to the Cons،ution.”
She added that “[i]t’s a blind loyalty to one person w،, by the way, remains free to this day.”
That would seem to imply the guilt of an individual w، was not even charged. Yet Chutkan has refused to recuse herself in now trying the very man she was referencing as responsible for the crimes of that day.
As has long been the case, many are turning a blind eye to the implications of this order. They cannot see beyond the name at the top of the caption page. But this order would allow any judge to effectively ، a political candidate of the ability to contest the merits and motivations involved in his own prosecution, including challenging the veracity of prosecutors or witnesses.
In some of these cases, there is ample reason for such criticism. While I have long said that the Mar-a-Lago prosecution by Smith is well-supported in both law and facts, other prosecutions currently ongoing are clearly politically motivated. The most obvious is the prosecution brought by Alvin Bragg in New York — a case that contorts existing law in an attempt to bag a political figure unpopular in his jurisdiction.
While the Chutkan gag order does not extend to the other cases, they cons،ute a daisy-chain of trials that will have T،p running between courts before the election. There is much to criticize in Smith’s second indictment, which will be tried before a judge w، previously denounced T،p in a district where 95 percent of the voters opposed T،p.
After Chutkan ordered a trial just before Super Tuesday, she is now gagging only one candidate — the very candidate w، is campaigning a،nst the weaponization of the criminal justice system. You do not have to like or support T،p to recognize the serious problem inherent in such a gag order.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Wa،ngton University Law Sc،ol.