It has been clear for some time that U.S. District Judge Tanya Chutkan will only jail Donald Trump for contempt or impose other harsh penalties for his behavior if he leaves her no choice. Based on the former president’s response to the Justice Department’s motion for a limited silence order in the January 6 case, it appears this is exactly what Trump plans to do.

Trump is answering the insurrection-related charges in two areas: legal and political. His big bet is on the political side: that he can win the presidency, quash the two federal indictments against him and at least keep state prosecutions at bay while he is in office.

It is an unprecedented strategy and terrifying for the country. It is also understandable in light of the overwhelming evidence against him, which makes an outright acquittal highly unlikely.

On the legal front, until this week, Trump’s lawyers have made flimsy but largely conventional arguments to Chutkan and the judges presiding over his three other indictments. In stark contrast, Trump’s latest filing abandons any pretense of a coherent effort to convince Chutkan not to impose a gag order.

The motion for a limited gag order by special counsel Jack Smith’s team recited a litany of inflammatory claims from the former president. Trump has discredited the court, the prosecutor and the prosecutors; threatened to pollute the jury pool; and increased the risk of attacks on potential witnesses and court staff. Chutkan himself was the subject of an ominous threat from a Texas woman who called her chambers and warned: If Trump isn’t elected in 2024, we’re coming to kill you.

Any other defendant who had behaved like Trump would have had his bail conditions revoked and gone to jail. That did not happen in this case and is unlikely to happen as long as the court can prevent it, simply because all involved recognize the dire consequences of jailing the likely Republican nominee for president.

After laying out this alarming amount of evidence, federal prosecutors requested a strictly tailored silence order, essentially ordering Trump not to botch the trial and not to intimidate potential witnesses.

Trump’s response Monday was a screed that only makes sense in the context of his broader political strategy.

The letter denigrates the Justice Department’s motion as an obvious attempt by the Biden administration to unlawfully silence its most prominent political opponent. Elsewhere, Trump’s lawyers write that the prosecutor, well aware that she will lose the upcoming presidential election, is trying to unconstitutionally silence President Trump’s political speech (but not President Biden’s) under penalty of contempt.

It is the repeated emphasis that the attempt to impose a limited gag order comes from the Biden administration. The letter contains no fewer than nine references to Biden and his decisive administration. It is pure demagoguery on behalf of Trump’s political base to claim that the criminal charges against him are the result of a political order from the president. Any semi-sophisticated observer knows it’s a lie. The barrier between Biden and Atty. General Merrick Garland is only strengthened by the separation between Garland and Smith, who has a large degree of independence from the department.

Trump’s position is less likely to convince Chutkan than it is to provoke her. During her first hearing in the case, the judge warned the parties that she would not let the election influence her decisions.

By replacing political rhetoric with legal substance and relying on patently false characterizations, Trump undoubtedly reduces his chances of rejecting the Justice Department’s motion, which is based on the law and Trump’s own impropriety. He is clearly happy to increase the chance of a silence order. It would serve his political strategy to pose as a messianic martyr waging war against the deep state for the sake of retaliation against his supporters.

I expect Chutkan to impose some form of limited gag order on Trump; the record that supports this is too strong to ignore. It may even involve some tongue-lashing from the former president. Her goal will be to save room for intermediate forms of discipline that will keep Trump in line and prevent the ultimate boom from being slowed down and landing him in jail.

But no matter how much wiggle room she and the defendant leave, Trump may be determined to force the judge’s hand. Monday’s filing suggests that’s where this is going.

Harry Litman is the host of the

Talking Feds Podcast

.

@harrylitman