Editor’s Note: Jill Filipovic is a journalist based in New York and author of the book “OK Boomer, Let’s Talk: How My Generation Got Left Behind.” Follow her on Twitter. The opinions expressed in this commentary are solely her own. View more opinion on CNN.
CNN
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Former President Donald Trump may be facing the biggest challenge of his life. It’s not running for president after a decisive loss. It’s not staring down multiple criminal charges across multiple jurisdictions. But something even more difficult for this particular man: shutting up.
On Monday, a federal judge imposed a gag order on Trump, limiting his ability to publicly attack special counsel Jack Smith, Smith’s staff, court personnel and potential witnesses in the case related to Trump’s alleged attempts to overturn the 2020 election. It’s not a muzzle of Trump’s ability to speak in general, but it is a demand that he not smear those involved in the case against him.
“This is not about whether I like the language Mr. Trump uses,” Judge Tanya Chutkan said. “This is about language that presents a danger to the administration of justice.”
Trump remains fully able to smear a long list of perceived opponents, including President Joe Biden and the Justice Department broadly. He is permitted to continue to claim, as he long has, that the prosecutions of him are politically motivated. (Trump has denied any wrongdoing.) With Chutkan’s order in place, he just can’t intimidate witnesses and attack counsel and court staff members — a prohibition that seems well within reason in the interests of a fair process.
Trump was predictably incensed.
“WILL APPEAL THE GAG ORDER RULING. WITCH HUNT!” he wrote on the social media platform Truth Social.
And on Monday in Iowa, he complained, “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.” He added, “I’ll be the only politician in history where I won’t be allowed to criticize people.”
This is, of course, untrue — Trump can criticize the vast majority of people, including Chutkan herself. He just can’t interfere with a criminal proceeding by using language that could result in the special counsel or his team being targeted by Trump’s supporters, which could taint a jury pool or intimidate witnesses in the case against him.
For the most part, criminal defendants understand it’s not in their best interests to mouth off about the judge or the prosecution. But most also don’t enjoy the support of millions of followers and fans.
Trump is not the average criminal defendant; he’s the Republican frontrunner for the presidency. And there are legitimate First Amendment concerns with any gag order. When it comes to muzzling Trump’s speech, the stakes are extremely high, and so the bar for doing so should be, too.
Trump’s team made this exact argument. When the judge asked Trump’s lawyer, John Lauro, “(Trump) does not have the right to say and do exactly what he pleases. Do you agree with that?” Lauro agreed “100%.” But then he contradicted himself, pushing back on the proposed restrictions on Trump to make comments about the prosecution.
To be sure, the decision to gag a defendant should not be taken lightly, nor infused with politics. It is crucial that Trump, as odious and dangerous as I personally find him, have the ability to fully campaign: to criticize his opponent, to criticize the system and to make the case for putting him back in the White House. Principles like the importance of free speech cannot bow to political preferences.
But freedom has never existed without any limitation. There are limitations on speech: You can be prosecuted if you use speech to incite violence, for example, or to defraud someone. And there are civil penalties for using your free speech to defame or slander someone. When defendants are indicted for crimes, some of their rights are constrained — they have to show up in court, for example, and may be held in detention before trial. If they pose a threat of physical harm, they may be restrained. While Trump, of course, cannot control everything his followers do after hearing or reading his words, there is little question that his words have inflamed people to action – including the many who showed up at the capitol on January 6, 2021.
In this trial, a day after Trump posted, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!,” on Truth Social, a Texas woman left a voice message for Chutkan saying, “If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly.” Trump has called special counsel Smith a “thug” and “deranged.” And Chutkan warned the former president before, telling him to cut out the “inflammatory” rhetoric. Trump didn’t listen.
None of us can predict the future. But if I were a gambler, I’d put a fair bit of money on the probability that Trump will violate the gag order sooner rather than later. The question then is what happens next. Will the judge impose sanctions, and what those might look like? If the argument about a criminal defendant’s First Amendment rights makes it up the chain to the Supreme Court, the conservative majority will find themselves in the interesting spot of being generally hostile to criminal defendants’ rights while being quite accommodating of Trump.
This is untread ground, and I imagine that any judge would be awfully hesitant to impose jail time as a penalty for Trump’s flouting of her order. But the hope is that the judge, while recognizing these unusual circumstances, will not accord Trump unusual treatment — that instead she will respond to his actions the same we she would anyone else who entered her courtroom.
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Trump is a special criminal defendant, in the sense that he’s the first former president of the United States to face criminal charges. But the American system of justice is also special in the sense that it aims to treat defendants fairly, no matter who they are, and to not accord special treatment to the powerful.
The justice system, obviously, often fails spectacularly at meeting this aim: The wealthy and powerful, like Trump, routinely find themselves spared incarceration or punishment at all, even when they commit crimes, while poorer Americans, and Black and brown Americans in particular, are incarcerated at high rates and often denied the benefit of cash bail. Contrary to what Trump suggests, powerful defendants like him are often treated with kid gloves by a system that is, in practice, stunningly unfair.
But the goal of fairness is a powerful and necessary one. It is a goal to which all of us, and particularly those who carry out American justice, should continue to aspire. Treating a man who was once among the most powerful people in the world fairly — with appropriate consideration, but also appropriate penalties for wrongdoing — sets an important example.
And that means treating Trump like anyone else — which includes, where necessary, telling him to shut up.
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