Everything The Ex-President Can’t Say In The Cases Against Him As Judge Reimposes Order

Topline

The federal judge overseeing the case against former President Donald Trump for trying to overturn the 2020 election reimposed a gag order against him late Sunday, as the ex-president faces a growing number of restrictions on his speech in the ongoing criminal and civil cases against him in light of his repeated attacks on prosecutors, judges and other parties in the proceedings.

Former President Donald Trump speaks during the first day of his civil fraud trial at New York State … [+] Supreme Court on October 2 in New York City.

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Key Facts

Federal Election Case: Under the terms of U.S. District Judge Tanya Chutkan’s gag order, which was first imposed October 16 and reimposed Sunday after a brief pause, Trump and other “interested parties” in the case cannot make public statements that “target” Justice Department Special Counsel Jack Smith or his staff; defense counsel and their staff; any court staff or “any reasonably foreseeable witness or the substance of their testimony.”

The gag order comes on top of the conditions of Trump’s pre-trial release, which already barred him from communicating about the case “with any individual known to the defendant to be a witness,” except through counsel, as well as a protective order that prohibited him from sharing any sensitive materials in the case.

Civil Fraud Trial: New York Judge Arthur Engoron imposed a gag order on Trump and other parties in the ongoing trial accusing the ex-president and his company of fraud, barring parties from making any public comments or posts about members of the court’s staff after Trump made a disparaging post about one of Engoron’s clerks—which has already resulted in Trump being fined a combined $15,000 for twice violating the order.

Manhattan Criminal Case: A protective order was imposed on Trump and other parties in the criminal case against him in Manhattan for alleged “hush money” payments during his 2016 campaign, which prohibits Trump and other parties from copying any evidence in the case or sharing it on social media, and also delays names of court staff or some witnesses in the case from being disclosed until jury selection begins in the trial.

Georgia Election Case: Under the terms of Trump’s bond agreement in his criminal case in Fulton County, Georgia, for trying to overturn the 2020 election, the ex-president cannot communicate with any of his co-defendants in the case or any potential witnesses about the facts of the case, and he cannot intimidate them or “otherwise obstruct the administration of justice.”

Examples of what would constitute intimidation or obstruction include any direct or indirect threats against co-defendants, witnesses, victims, the Fulton County community or any property in the community, the agreement states, including any posts on social media or reposts of other users’ comments.

Federal Documents Case: Trump’s bond conditions in the criminal case against him for keeping White House documents at Mar-A-Lago prohibit him from discussing the case with any witnesses or co-defendants Walt Nauta and Carlos de Oliveira, except through counsel, and a separate protective order bars him from sharing any discovery materials in the case, and states he can only access that information under direct supervision of his defense counsel.

Contra

Chutkan’s gag order in the federal election case made clear there are still a number of things Trump can comment on without violating the order. The gag order does not stop the former president from criticizing the Biden Administration, Justice Department or government more generally; asserting that he’s innocent and the case against him is politically motivated; or “criticizing the campaign platforms or policies” of Trump’s political rivals in the 2024 election, the filing states. Trump can also continue to criticize the judge herself.

Chief Critic

Trump has strongly opposed Chutkan’s gag order against him, which he claims is a violation of his freedom of speech that hurts his presidential campaign, and has said he will appeal the judge’s Sunday ruling. In a Truth Social post early Monday, Trump claimed the order was “unthinkable” and “will put me at a disadvantage against my prosecutorial and political opponents.” “It illegally and unconstitutionally takes away my First Amendment Right of Free Speech, in the middle of my campaign for President,” Trump claimed. “How can they tell the leading candidate that he, and only he, is seriously restricted from campaigning in a free and open manner?” He has also opposed Engoron’s order, and his attorneys have said they will appeal the $10,000 penalty against him for violating it a second time.

What We Don’t Know

What penalties will be imposed on Trump if he violates the gag orders against him or any conditions of his pretrial release. Chutkan did not offer any specifics of what punishments she could impose if Trump goes against the order—though she acknowledged at a hearing that “an order is sort of pointless if you don’t have a mechanism to enforce it”—and just said in her Sunday ruling that “the court will assess [the] substance and context” of any Trump statements that could be considered violations before determining if he violated the order. Engoron has threatened “serious sanctions” against Trump if he continues to violate the gag order in that case, which the judge has said could include higher fines, being held in contempt or even possibly imprisonment. In addition to penalties like possible fines or imprisonment, Politico notes Chutkan could also restrict Trump’s use of social media, as happened to Trump ally Roger Stone.

Crucial Quote

Chutkan wrote in her initial ruling imposing the gag order that Trump’s statements about parties in the case make them “targets for threats and harassment” and “pose sufficiently grave threats to the integrity of these proceedings that cannot be addressed by alternative means.” “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,” Chutkan wrote.

Key Background

Trump has long attacked his political and legal rivals on social media and in public speeches, and his criticism has ramped up as legal cases have piled up against him. The ex-president has repeatedly gone after such prosecutors as Smith, Fulton County District Attorney Fani Willis and Manhattan District Attorney Alvin Bragg, as well as Chutkan, Engoron and other judges. He’s additionally made repeated comments about potential witnesses in the federal election case that prosecutors argued made a gag order necessary, including comments about Pence and suggesting then-chairman of the Joint Chiefs of Staff Mark Milley should be executed. Chutkan cited Trump’s comments about Milley in her order imposing the gag order, as well as statements by the ex-president calling potential witnesses liars and suggesting Smith, who’s heading the two federal investigations into Trump, is a “thug.” Engoron’s gag order marked the first formal gag order to muzzle Trump when it was imposed on October 3, though the question of whether judges would move to restrict Trump’s speech has been a source of speculation since his first indictment in March. After Engoron acted, legal experts suggested Chutkan would likely follow, with the New York judge “break[ing] the dam” for other judges.