On Sunday evening, Judge Tanya Chutkan moved to reinstate a gag order against Donald Trump in the election interference case being heard in Washington, D.C. The reinstatement followed another stream of messages from Trump that could easily be read as attempts to intimidate witnesses or encourage violence against court officials and prosecutors.
Chutkan originally issued the order on Oct. 16 after prosecutors expressed concern that Trump’s statements created a threat to everyone involved in the trial and could be interpreted as encouraging violence. However, Chutkan agreed to stay implementation after Trump’s attorneys appealed the order. In a brief session on Sunday evening, Chutkan removed that stay, writing that Trump seemed unlikely to win on appeal and reinstating the gag order was in the public interest.
Within two hours of the order being restored, Trump issued a lengthy series of insults directed at former Attorney General Bill Barr, who is a potential witness in the case. This could easily be read as a violation of the gag order.
Donald Trump is a bully. His everyday communication consists of insults, intimidation, and threats—both implicit and overt. A typical message from Trump involves explaining why someone that he once praised is actually “overrated,” “dumb as a rock,” or “a fucking idiot.” Those messages are also often laden with encouragement for Trump’s followers to engage in harassment, or hints that anyone who opposes him will suffer as a result.
These are exactly the sorts of remarks that judges don’t tend to like, especially when they are directed at potential witnesses or court staff. They can also get upset over lies being spread about prosecutors and law enforcement that might well get someone killed. At a hearing in September, it was clear that Trump’s false claims had encouraged death threats against prosecutors and others.
When she initially issued the gag order, Chutkan made it clear that Trump was not entitled to wage a “smear campaign” against prosecutors and court personnel. “No other criminal defendant would be allowed to do so,” Chutkan said, “and I’m not going to allow it in this case."
Following Chutkan’s removal of the stay, Trump immediately made a series of angry posts, blaming the gag order on “the Biden administration.”
The claim that the gag order is designed to interfere with Trump’s campaign and violate his First Amendment rights form the basis of his appeal. Chutkan shot down that idea entirely, reminding his attorneys that “the First Amendment rights of participants in criminal proceedings must yield, when necessary, to the orderly administration of justice,” and making it clear that just because Trump was involved in a campaign, that doesn’t give him any additional rights.
But Trump kept up a stream of claims overnight, attacking the Biden administration and leading up to this gem on Monday morning.
In general, judges are more tolerant of attacks on themselves and on prosecutors than they are on witnesses and court officials. But that doesn’t mean Chutkan is going to look favorably on Trump testing the boundaries of his ability to engage in intimidation and incitement.
The gag order from Chutkan follows Trump’s second fine from Judge Arthur Engoron who is overseeing Trump’s civil fraud trial in New York City. Trump has twice made false claims about a court clerk, including sending out a message falsely calling her “Chuck Schumer’s girlfriend.” Trump has now been fined a total of $15,000 by an increasingly angry Engoron.
Both gag orders are limited in scope. Trump could continue to proclaim his innocence, demean the court proceedings, and blame the whole thing on Biden or former President Barack Obama with no likely consequences. But that would require Trump to forego direct attacks on prosecutors, witnesses, and court officials. Based on existing evidence, Trump isn’t capable of that kind of restraint.