Our Founding Fathers separated from England because their God-given rights were being trampled by an imperious king. Read all about it in the Declaration of Independence. And when you’re done, send a copy to federal Judge Tanya Chutkan. She imposed an unconstitutional gag order against former President Donald Trump that stops him from criticizing certain government officials — namely the judge herself and the Biden Justice Department officials bringing the charges against him.
When Lady Justice removes her blindfold and uses it to gag the speech of a citizen dragged into court by his political opponent’s henchmen, the scales of justice clatter to the floor. You can love or hate Trump, you can think him guilty or innocent, but if his fundamental rights can be stripped in the bright glare of a worldwide spotlight, just imagine what can be done to you in a desolate courtroom in your community.
Judges and prosecutors can affect the life of any given American much more directly than a president can. Yet elections or appointments of judges receive roughly the same amount of voter attention as a car alarm droning in a distant parking lot. Their influence is now on display.
Trump finds himself ensnared in more legal challenges than a centipede has legs. Many Democrats will claim he brought them on himself. Many Republicans express concern at how much government bandwidth is being focused on the one person most likely to unseat President Joe Biden, who is — not coincidently — the ideological comrade of nearly every prosecutor and judge involved in these capricious cases.
Voices from the left claim that since the judge’s gag order also applies to the government, all is even. But there’s a big difference between the prosecutors, who are officers of the court who voluntarily gave up a slice of their free speech rights by becoming lawyers, and Trump, a private citizen hauled into court. A gag order is a blunt instrument that must be wielded with judicial caution. That’s true even in cases not involving presidential candidates.
First Amendment on Trial
At a glance, this trial is about the former president. But stopping the leading presidential candidate from criticizing his opponent’s Justice Department’s attempt to imprison him actually means the First Amendment is on trial as well. And it’s just the latest in a sordid history of those in power pulling every available lever to maintain office.
King George and his royal ministers relied on soldiers clad in red to secure their position. Biden and his party’s minions are counting on judges wearing black to carry out a similar errand. John Adams, a patriotic thorn in the king’s side, once said, “The liberty of speaking and writing guards our other liberties.”
In that vein, the U.S. Supreme Court has ruled that “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens … for simply engaging in political speech.” If that limitation applies to the legislative branch it certainly applies to the executive and judicial branches as well. And Trump is unquestionably engaged in political speech.
Twisting the Law
Those who justify the gag order with the notion that potential jurors must not see comments about the Trump trials conveniently forget the obvious: Nearly everyone already has an opinion about Trump. Gag orders — in the rare instances where they are permissible — are only effective when the jury pool knows little about a case.
There’s more. If the judge were seriously worried about improper publicity, she would require the federal prosecutors to account for the numerous and illegal leaks about the Trump investigations.
Gag orders are not always improper. I once represented a judge in a murder trial whose gag order was legally challenged by a newspaper. In my arguments, I acknowledged that gag orders, when carefully and cautiously weighed and drafted, can be constitutional. But a scalpel is not a chainsaw. One meticulously slices while the other mauls.
Trump’s gag order relies on the landmark U.S. Supreme Court case of Sam Sheppard, the Cleveland doctor accused of murdering his wife. Yet the high court’s concern in that case was for the rights of the defendant himself — not for the judge or the prosecutors, whom the court pointed out were playing to the press and voters.
Here, the judge seeks to protect the prosecutors, saying, “I cannot imagine any other criminal case in which a defendant is permitted to call the prosecutor deranged.” I’ve been a prosecutor for two decades. Criticism of us and our work is commonplace. We’re all public officials and — short of defamation and threats — people can call us any name they want. Most of us pay more attention to actual danger from vengeance-seeking criminals, so garden-variety criticism usually sounds like little more than nonsense and whining.
Which brings us back to former President Trump. It might not be the savviest legal strategy for him to blather on about his cases, but he’s entitled to do so. The judge he seeks to criticize ought to be criticized because she doesn’t seem to understand that the First Amendment simply isn’t optional.
