Trump’s new gag order poses puzzles with no easy answers

U.S. District Court Judge Tanya Chutkan’s gag order against Donald Trump is the first major consequence of his life as a criminal defendant. But in some ways, the order raises more questions than it answers — including how Chutkan intends to enforce her restrictions on a politician who never stops talking.

The veteran Obama-appointed jurist ruled Monday that Trump’s pretrial attacks on potential witnesses and others threatened the integrity of the upcoming trial on charges stemming from Trump’s effort to subvert the 2020 election. She barred Trump from continuing to publicly berate special counsel Jack Smith and his team, court staff, or any “reasonably foreseeable witness.”

Chutkan followed up with a three-page order on Tuesday that spelled out her ruling in writing. But it left many details murky — and so far, Trump has shown no signs of piping down. His legal team also filed an immediate appeal.

Here are some unanswered questions about the Trump gag order.

What if Trump defies the order?

This is the whole ballgame. During Monday’s hearing, Chutkan pressed Smith’s team for their thoughts, acknowledging that punishing a former president presents different obstacles than the typical subject of a criminal gag order.

“An order is sort of pointless if you don’t have a mechanism to enforce it,” Chutkan said.

But her oral ruling Monday and written order Tuesday were silent on how she’ll determine potential punishments for Trump, which could range from in-court scoldings to financial penalties to pretrial incarceration.

Chutkan also could try to limit Trump’s use of social media — his favored platform for many of his attacks. That’s the approach a federal judge adopted in 2019 in the case of longtime Trump associate Roger Stone. After Stone threatened the judge on Instagram, the judge barred him from using social media.

Chutkan, though, is plainly aware that Trump’s supporters would portray any such measures as acts of political persecution. But she also cited Supreme Court precedent emphasizing that she is obligated to protect her proceedings “from prejudicial outside interferences.”

Senior assistant special counsel Molly Gaston said Chutkan has the full range of options at her disposal, but Trump’s attorney John Lauro scoffed at the idea that the judge would even contemplate jailing Trump ahead of the 2024 election. Lauro called any pre-election enforcement against Trump “impossible.”

Chutkan’s only hint of a plan came at the end of Monday’s hearing, when she said she would raise any purported violations “sua sponte” — meaning, at her own initiative — and dole out potential punishment.

Who are the “interested parties?”

When Smith’s team asked Chutkan to impose a gag order, they proposed barring Trump and his surrogates from making inflammatory statements that might “prejudice” the case. But Chutkan’s order used different language, instead imposing restrictions on “all interested parties.”

The verbiage may be a nod to the fact that her order also binds the special counsel’s office, but it uses broader language that doesn’t have an immediately obvious definition. And it could become a complicated matter when figures like Trump’s son, Donald Trump Jr., or Trump’s political allies launch attacks on the special counsel, the court or others covered by the order.

How does Chutkan define “target?”

Chutkan’s order bars statements that “target” Smith or his staff, defense attorneys, court staff or witnesses, but the judge never describes what she means by the term. She could’ve sought to rule out all public comments by Trump or his lawyers that simply mention the special counsel or his aides, but she didn’t do that.

Gaston had proposed that the judge bar comments that are both “disparaging” and “inflammatory,” but the judge complained during the Monday hearing that those words were hard to define. “Target” is a bit clearer, but still lacks certainty about what kind of speech the judge is trying to prevent.

A broad reading of the judge’s order could spell the end for TV appearances by Trump and his lawyers addressing in any way developments in the D.C. election-subversion prosecution or the other case Smith is pressing against Trump in Florida. In that case, Trump is charged with obstruction of justice and illegally retaining classified information.

Chutkan did make clear on Tuesday that Trump remains free to “make statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated.”

The preface to Chutkan’s order points to Trump’s use of the word “thugs” to describe people involved in the legal process — a term she dwelled on at Monday’s hearing as well, worrying that it was a signal to Trump’s followers to do harm.

“If you call people thugs enough times, doesn’t that suggest that someone should get them off the streets?” Chutkan wondered.

Trump used the term again shortly before the judge’s written order was released.

“This is a railroading. It’s all coming out of the Department of Justice. It’s all set up by Biden and his thugs that he’s surrounded with,” the former president told reporters in New York Tuesday morning, without a specific reference to Smith or his team.

Trump’s lawyers filed papers on Tuesday afternoon initiating an appeal of the gag order, and although his lawyers have not yet laid out their arguments for the appeal, Lauro made clear at the Monday hearing that an appeal would likely focus on alleged vagueness in the judge’s directive.

How far does the Pence carve-out go?

During oral arguments on the gag order proposal, Chutkan made clear that she viewed former Vice President Mike Pence as differently situated than others Trump has criticized with his social media invective. Pence is a possible witness against him in the election-subversion case — but he is also actively campaigning against Trump for the GOP presidential nomination.

Chutkan singled out Pence by name in her written order, emphasizing that the restrictions she is imposing “shall not be construed to prohibit … statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.”

But the line between impermissible attacks on Pence’s truthfulness or character and those pertaining to his “platforms or policies” may be hard to locate — particularly when a central premise of Pence’s candidacy is his willingness to stand up to Trump on Jan. 6 and refuse to subvert the election. That confrontation is at the heart of Smith’s charges against the former president.

What will an appeals court — or the Supreme Court — do?

How Trump’s appeal of the gag order will fare is far from clear, since there’s little legal precedent involving defendants challenging gag orders imposed on them in criminal cases — and there is no precedent involving a defendant who is simultaneously running for president.

In the Roger Stone case in 2019, Stone and his family members filed an immediate petition challenging his gag order at the D.C. Circuit Court of Appeals. The appeals court essentially punted on the issue, saying Stone used the wrong legal mechanism to appeal and his kin should have brought their complaints to the trial judge first before seeking relief from the appeals court.