Jack Smith Wins a Gag Order That Bars Trump From Insulting Special Counsel and Judge, but Will the Order Survive an Appeal?

Judge Tanya Chutkan’s gagging of President Trump, months before his January 6 trial is set to begin, increases the former president’s chances of landing behind bars and could reshape the 2024 presidential race. Yet Mr. Trump is expected to seek to overturn the order on appeal.

The imposition of a gag order — albeit a partial one — is a victory for Special Counsel Jack Smith, who has sought to persuade Judge Chutkan that curtailing Mr. Trump’s First Amendment right is necessary to the administration of a fair trial. The judge found that the former president “does not have the right to say and do exactly what he pleases.”

The judge’s conditions, while significant, were short of what Mr. Smith requested. The order covers discussion of court personnel — including Judge Chutkan — potential witnesses, and the special counsel’s office. Mr. Trump remains free to comment on the District of Columbia, which he has called a “city of filth and decay.” He is also free to opine on the Department of Justice writ large. The gag order probably forbids him from continuing to refer to Mr. Smith as “a deranged person.”

Judge Chutkan’s order, which was delivered orally and will be memorialized in written form, is appealable. Mr. Trump could make the case now to the District of Columbia Circuit of the United States Court of Appeals that the order is an unlawful “prior restraint” on speech, or he could wait until Judge Chutkan moves to punish him for violating its terms. 

Mr. Trump has called Judge Chutkan a “Trump-hating judge” and Mr. Smith’s office a “team of thugs.” Soon after his indictment, he posted to Truth Social, “If you go after me, I’m coming after you.” Mr. Smith notes in a filing that one of Mr. Trump’s supporters was arrested for making death threats against Judge Chutkan. 

One supporter of Mr. Trump in Congress, Senator Vance, took to X to call the order “a direct assault on the First Amendment. Disgraceful.” He adds that it is “something that should be appealed as quickly as possible all the way to the Supreme Court.” In a campaign email, Mr. Trump writes, “Today really isn’t about gagging me. It’s an attempt to gag the American people.”

Appearing to anticipate the terms of an appeal, Judge Chutkan explains that “First Amendment protections yield to the administration of justice and to the protection of witnesses.” Mr. Trump will likely argue that the restrictions she has placed on him are an unlawful bar on those constitutional protections.    

Judge Chutkan’s position is that “just because” Mr. Trump is “running a political campaign does not allow him to do whatever he wants.” She cites his labeling of Mr. Smith as a “thug” as behavior that “wouldn’t be allowed by any other criminal defendant,” and urges him to avoid language that “presents a danger to the administration of justice.”

The gag order that was announced at the end of the Monday morning hearing appears to flow from Judge Chutkan’s finding that Mr. Trump’s “presidential candidacy does not give him carte blanche to vilify public servants who are simply doing their jobs.”  Mr. Trump’s lawyer, John Lauro, tried to stave off such an order by arguing that “every single issue that relates to this case also has political issues.”

Rebuffing Mr. Trump’s position that the case against him is essentially a political one, Judge Chutkan observed that “Mr. Trump is a criminal defendant. He is facing four felony charges. He is under the supervision of the criminal justice system and he must follow his conditions of release.” While the jurist did not mention the consequences of violating the order, contempt of court is often punishable by a fine or time behind bars.

Another current high-profile criminal defendant, Sam Bankman-Fried, the former crypto-billionaire and FTX founder, was recently jailed at Brooklyn to await trial after he was judged to have committed witness intimidation by leaking his ex-girlfriend’s diary to the New York Times. That was for witness tampering, a charge Mr. Trump could face should he violate the judge’s order.  

This is the second gag order that has been imposed on Mr. Trump. He already faces one that was issued by a New York state court judge, Arthur Engoron, after Mr. Trump reposted a picture of that judge’s law clerk with Senator Schumer as well as a link to her private Instagram account. He referred to her, baselessly, as the lawmaker’s “girlfriend.” 

Judge Chutkan also told Mr. Lauro that “this trial will not yield to the election cycle and we will not revisit the trial date.” That means that jury selection will begin on March 4, and thus, appeal notwithstanding, Mr. Trump will have to abide by the judge’s order for nearly five months before proceedings begin.