WASHINGTON — A judge imposed a limited gag order on former president Donald Trump on Monday, restricting Trump from making public statements attacking the witnesses and specific prosecutors or court staff members involved in the federal case concerning his efforts to overturn the 2020 election.
Trump’s free speech rights do not permit him “to launch a pretrial smear campaign” against those people, Judge Tanya Chutkan said.
“No other defendant would be allowed to do so,” Chutkan added, “and I’m not going to allow it in this case.”
But the narrowly tailored order explicitly left Trump free as he pursues his presidential campaign to continue disparaging the Justice Department and President Biden. It even allowed him to assert that he believed his criminal prosecution was politically motivated. Chutkan apparently left Trump leeway to attack her as well.
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The judge also addressed a particularly thorny question involving former vice president Mike Pence, who is both a witness in the case and one of Trump’s rivals for the 2024 Republican nomination. She said Trump could go after Pence as long as the attacks did not touch on Pence’s role in the criminal prosecution.
Chutkan, who was appointed by President Barack Obama, did not immediately address how she intends to enforce her order. She said she would assess any consequences for Trump if and when he violates it. Penalties for defying an order range from a reprimand or a fine to jail time.
Chutkan imposed the gag order at the end of a two-hour hearing in US District Court in Washington — one of the most contentious public proceedings so far in any of the four criminal cases Trump is facing. It was the second time in two weeks that a judge has placed restrictions on what the former president can say.
“They put a gag order on me, and I’m not supposed to be talking about things that bad people do, and so we’ll be appealing very quickly,” Trump said Monday at a campaign stop in Iowa. He added, “I’ll be the only politician in history where I won’t be allowed to criticize people.”
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Gag orders limiting what trial participants can say outside of court are not uncommon. But Trump’s status as the Republican front-runner, and his decision to portray prosecutors’ request for a gag order as part of an effort by the Biden administration to stifle a political rival, made the order especially complex.
In issuing a nuanced order, Chutkan appeared to be threading the needle between balancing Trump’s rights to political speech as a candidate for the country’s highest office and her own duties to protect the integrity of the proceedings before her.
Trump and his legal team have persistently sought to portray the election case as being about his First Amendment rights, and they are expected to challenge the order vigorously.
Trump could immediately appeal the order, arguing it is an unconstitutional prior restraint on his free speech rights. In addition, if he later makes remarks that the judge decides had crossed the line and imposes a punishment, he could challenge that specific episode.
Much of the hearing was given over to heated sparring between Chutkan and John Lauro, a lawyer for Trump.
Cutting Lauro off several times — and even laughing at him when he maintained that the pretrial release conditions imposed on Trump were working — Chutkan staked out a position that was largely in keeping with the government’s. She repeatedly said that Trump should not enjoy any special privileges as a presidential candidate. She added that she was simply seeking to protect people involved in the election interference case from being threatened and to keep Trump’s bullying remarks from spiraling into violence.
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“This trial will not yield to the election cycle,” Chutkan said.
Lauro, often using exaggerated language, sought to portray Trump as the victim of the government’s “tyranny” and “totalitarianism.” He tried to reframe the former president’s public statements, saying they were merely examples of “speaking truth against oppression,” and he baselessly portrayed Biden as having directed the case against Trump.
At one point, the tensions nearly boiled over as Chutkan noted that Lauro was speaking as much to his client, Trump, as he was to her, and warned him to “tone this down a bit.” Lauro responded by accusing the judge of trying to censor his own speech.
Trump has a long history of attacking those who have taken part in criminal cases against him. Over the weekend, in fact, he falsely declared in a fund-raising email and on social media that prosecutors in the office of special counsel Jack Smith had asked to gag him specifically to stop him from criticizing Biden during the campaign.
But during the hearing, a prosecutor, Molly Gaston, told the judge that since Biden is not involved in the criminal case, their request for a gag order would not preclude Trump from going after him. Chutkan echoed that position, later emphasizing that Trump is free to attack the Biden administration and the Justice Department — just not individual prosecutors or their families.
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Some of the former president’s more outrageous statements seem to have had real-world consequences. One day after he posted a message on his social media platform that read, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” a Texas woman left a voicemail message for Chutkan, saying, “If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly.”
The woman has since been arrested.
Trump was placed under a very limited gag order this month by the New York state judge overseeing his civil trial in Manhattan, where he stands accused of inflating the value of his properties for years.
Trump had posted a photograph of the judge’s law clerk on his social media platform with Senator Chuck Schumer, the Democratic majority leader, and falsely stated she was Schumer’s girlfriend. In response, the judge, Arthur Engoron, barred Trump from speaking about any people who work on the judge’s staff.
This article originally appeared in The New York Times.