A proposed gag order aimed at curbing Donald Trump’s inflammatory rhetoric puts the judge overseeing his federal election interference case in a difficult position: She must balance the need to protect the integrity of judicial proceedings against the

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Amendment rights of a presidential candidate to defend themselves in public.

U.S. District Judge Tanya Chutkan will hear arguments in Washington on Monday about whether Trump went too far with comments such as calling prosecutors a team of criminals and a possible cowardly pig witness.

It is Chutkan’s biggest test yet, underscoring the unprecedented complexity of prosecuting the former Republican president as the judge vows not to be guided by political considerations in her decisions.

Ending the flow of Trump’s harsh language would make the case easier to deal with. But one of the tough questions Chutkan must answer is how to enforce a gag order and craft a ban that doesn’t risk provoking Trump’s base and fueling his claims of political persecution as he campaigns to regain the White House in 2024.

She must consider the serious risk that not only his words could lead to violence, but that she could play into the conspiracy theories that Trump’s followers tend to believe in, and that her act of issuing a gag order could lead to a very disturbing situation. response, said Catherine Ross

said

a professor at George Washington University Law School.

If we allow this to prevent a judge from doing what is necessary, that is a major problem for the rule of law. But on the other hand, if I were the judge, I would definitely think about it,” she said.

Short of issuing an injunction, Chutkan has already suggested that inflammatory comments could force her to move up the trial, which is now set to begin in March, to avoid tainting the jury pool. Judges can threaten gag order violators with fines or jail time, but jailing a presidential candidate could lead to serious political backlash and pose logistical hurdles.

Chutkan, who was nominated to the bench by the President

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Obama is not the first judge to face the consequences of Trump’s speech. The judge in his civil fraud trial in New York recently imposed a limited silence order banning personal attacks on court staff following a social media post that defamed the judge’s chief clerk.

Special counsel Jack Smith’s team is seeking a broader order to prevent Trump from making inflammatory and intimidating comments about lawyers, witnesses and others involved in the case accusing the former president of illegal plans to overturn his 2020 election loss. against Democrat Joe Biden. Trump’s lawyers call it a desperate attempt at censorship that would prevent Trump from telling his side of the story during his campaign.

A complicating factor is that many of the potential witnesses in the case are themselves public figures. In the case of Trump’s vice president, Mike Pence is also running against Trump for the Republican nomination. That could open the door for Trump’s team to argue that he should be able to respond to the public opinion he sees on television, or that he should seek a competitive advantage by denouncing a political rival for the White House set.

Burt Neuborne, a civil liberties attorney who has challenged silence orders on behalf of defendants and attorneys in other cases, questioned whether a formal order was necessary because witness intimidation is already a crime and the court can protect itself from a tainted jury by carefully questioning potential jurors. before the trial. A silence order could also delay the case because there is a good chance that Trump will violate the order and the judge will want to punish him, otherwise Trump will challenge the order beforehand, he said.

And so in a sense you may be playing directly into his hands by essentially creating yet another mechanism by which he can try to push this past the 2024 election, because I feel like any silence order that she issues will ultimately Supreme Court will reach. said Neuborne.

But Barbara McQuade, a former U.S. attorney in Michigan, said she believes the judge can issue an order limited enough to withstand legal challenges and protect both the case and Trump’s ability to campaign.

“Especially in this case, where Donald Trump has made it clear that unless she acts, he will say all kinds of outrageous and vitriolic things about the parties, about the judge, about witnesses,” said McQuade, a law professor at the University of Michigan. in some ways, I think, she has a responsibility to act here.

There is limited precedent for restricting the speech of political candidates who are criminal suspects.

In one case, a federal appeals court in 1987 lifted a gag order against U.S. Rep. Harold Ford Sr., a Tennessee Democrat charged in a fraud case. Ford, who was eventually acquitted, claimed the case was brought under the Republican president

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The Reagan administration was racist and politically motivated.

Ford’s gag order prohibits him from even sharing his opinion on the case or discussing its facts. Noting that Ford would soon be re-elected, the court said the gag order would unfairly prevent him from responding to attacks from his political opponents and deter his constituents from hearing their congressman’s views on this issue of undisputed public importance.

Another appeals court in 2000 upheld a silence order challenged by then-Louisiana Insurance Commissioner Jim Brown in a fraud case, noting that the order allowed claims of innocence and other general statements about the case.

However, the court also noted that the judge had briefly lifted the silence order to prevent Brown from interfering with Brown’s re-election campaign. has absolute freedom to discuss his qualifications, has succeeded.

Chutkan himself has experience with gag orders.

In 2018, she imposed an order limiting lawyers’ comments in the case of Maria Butina, a Russian arms activist who pleaded guilty to working in America as a secret agent for Moscow. The order followed prosecutors’ admission that they had wrongly accused Butina of trading sex for access, as well as public comments by her attorney that Chutkan said crossed the line.

The following year, U.S. District Judge Amy Berman Jackson imposed a silence order on Trump ally Roger Stone in his obstruction and witness tampering case after he posted a photo of

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judgment with what looked like the crosshairs of a gun. Although she warned she could jail him if he violated the order, she banned him from social media months later after publicly discrediting the case against him again.

But that order was in direct response to a specific action, said Bruce Rogow, Stone’s attorney in that case. He said he doubted Trump’s attacks, while in very poor taste, posed the kind of danger that merited a gag order.

Trump’s speech may be classy, ​​but that’s what it is

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Amendment defends his right to present his distorted view of the world to the point where he poses a real threat to the people or the administration of justice. Not easy to measure, Rogow wrote in an email. Like obscenity, you know it when you see it.

____Richer reported from Boston.