The Gag Order Contempt Trap

An historical court hearing in Washington this week put on display the dangerous new lengths to which Biden's Department of Justice and a Democratic federal judge will go to ruin Donald Trump.

Artwork by Ruben Cueto

It was clear from the outset of Monday’s hearing to consider Special Counsel Jack Smith’s proposed gag order that Judge Tanya Chutkan planned to lower the boom on Donald Trump.

Observers in her packed courtroom hung on Chutkan’s every word over the course of nearly two hours; reporters from major news organizations filled nearby media rooms.

The once-aspiring dancer from Jamaica added theatrical flair to the history-making—or rather, breaking—spectacle by smirking, pointing, interrupting, and at times raising her voice at Trump’s defense attorney John Lauro while occasionally tossing out a laugh line or two at the former president’s expense.

But nothing was funny about the proceeding. In fact, after a surreal exchange in which Chutkan and federal prosecutor Molly Gaston discussed whether Trump’s use of the term “Crooked Joe Biden” would fall within the scope of the government’s proposed order, Lauro told the court, “George Orwell would have a field day with what we’re hearing from these prosecutors.”

Indeed.

The Criminalization of Mean Social Media Posts

As she repeatedly has stated since Smith handed down his four-count indictment against Trump in August for his alleged attempts to “overturn” the 2020 election, Chutkan reminded the defense team that their client’s candidacy for president has no bearing on her decisions. “Politics stops at this courthouse door,” Chutkan warned—a rich declaration from a judge who suggested that Trump should be behind bars for his role in the events of January 6 among other brazenly political comments.

Trump, Chutkan warned, “cannot say and do whatever he wants,” and proceeded to identify numerous Trump comments she found offensive based on her personal interpretation, not anything tethered to the law.

For example, she claimed that his Truth Social post calling Washington “a filthy and crime-ridden embarrassment to our nation” was an attempt to “disparage the District and the people who live in it, including those who could eventually make up the jury pool in this case.” Never mind the allegation is provably true.

Citing Trump’s description of Jack Smith as “deranged” and a “thug,” Chutkan outlandishly suggested the former president’s comments were intended to cause physical harm to the special counsel. “If you call certain people ‘thugs’ enough times, doesn't that suggest, Mr. Lauro, that someone should get them off the streets?” she asked Trump’s attorney. (Smith is spending millions of public funds on private security.) Lauro, of course, strongly disagreed.

She made the same allegation related to Trump’s post here about Mark Milley, the former chairman of the Joint Chiefs of Staff, whom Smith’s team claims is one of many “potential witnesses” in the March 2024 trial:

Rather than show concern about Milley’s insubordination, Chutkan argued that Trump's remark meant Milley should be “executed” by (truthfully) stating the penalty for treason is death.

“That is an absolute suggestion that that is an appropriate thing to happen,” Chutkan concluded. “If you suggest that someone is deserving of execution, then it's not a far stretch to imagine a situation where one of the millions of followers of this person decides to go ahead and do that.”

Molly Gaston piled on, telling Chutkan that “We both know that the tweet or the post about General Milley was a threat.”

But the contrasting demeanor in how Chutkan interacted with Team Smith versus Team Trump demonstrated her palpable eagerness to give the government most of what they wanted. Which is precisely what the Obama-appointee did in her official, groundbreaking order filed Tuesday.

Coordinated Contempt Trap

In a three-page decision, Chutkan outlined the vague contours of her gag order.

“Undisputed testimony cited by the government demonstrates that when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.” (The “undisputed testimony” related to findings of the January 6 Select Committee, not Smith’s own investigation, and dealt with accusations from 2020.) 

“Since his indictment, and even after the government filed the instant motion, Defendant has continued to make similar statements attacking individuals involved in the judicial process, including potential witnesses, prosecutors, and court staff. (“Court staff,” again, did not pertain to this case.) Defendant has made those statements to national audiences using language communicating not merely that he believes the process to be illegitimate, but also that particular individuals involved in it are liars, or ‘thugs,’ or deserve death.”

Reiterating her high-minded admonishment that “First Amendment rights must yield to the imperative of a fair trial,” Chutkan concluded Trump’s statements “pose sufficiently grave threats to the integrity of these proceedings.”

She continued. “The bottom line 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.”

Here is the crux of the order:

But two things beg for clarity. One, “directing others to make any public statements” appears to satisfy Smith’s request that the gag order prohibit “surrogates” from making unacceptable comments. 

What does that mean? Who, in Chutkan’s mind, are “others” and who decides if they’ve been directed by Trump or his attorneys? Does it apply to Trump’s campaign spokesmen, his family members, or even supportive members of Congress? How will the “directing” caveat be satisfied? An FBI raid followed by interrogation?

Second, the blanket term “reasonably foreseeable witness” creates a gaping contempt trap. During the hearing, Chutkan and Smith’s team made clear that negative comments about former Vice President Mike Pence, former Attorney General William Barr, and former chairman of the Joint Chiefs of Staff Mark Milley would be forbidden since they might be called as government witnesses in the March 2024 trial. (It’s highly unlikely any would agree to testify.)

But who else does that include? Smith’s indictment refers to dozens of individuals tied to the 2020 election including Republican officials in swing states who could be considered “reasonably foreseeable witnesses.” Does that mean Trump cannot criticize, say, Republican Georgia Governor Brian Kemp? What about Democratic governors in Michigan, Wisconsin, and Pennsylvania who also are mentioned in Smith’s indictment?

Does the gag order cover any and all comments about the 2020 election, an issue Trump continues to discuss on the campaign trail and one of continued concern to Republican voters?

Chutkan did not elaborate because she will act as the sole decision-maker. Chutkan suggested more than once during Monday’s hearing that Trump was not abiding by his conditions of release, indicating she is waiting in the weeds for a demonstrable Trump screw-up before charging him with contempt of court.

Which raises the possible penalties involved if she pursues that path. Trump could be subjected to home detention, excessive fines, or even jail if Chutkan finds he has repeatedly violated the order.

And anyone who thinks that’s a bridge too far isn’t paying attention to the hellishly rigged and unaccountable judicial system in our nation’s capital.

Chutkan’s order represents another acceleration in the Biden regime’s desperate drive to put Donald Trump behind bars before Election Day. Time will tell if she, and they, are successful.