WASHINGTON (CN) — A federal judge reversed her decision to pause a gag order in Donald Trump’s election subversion case in Washington Sunday night, rescinding an administrative pause she had placed pending Trump’s appeal of the order.
U.S. District Judge Tanya Chutkan imposed the order on Oct. 16 — and paused it on Oct. 20 — to prevent the ex-president from making inflammatory comments about special counsel Jack Smith’s team, potential witnesses in the case and her court staff.
The Barack Obama-appointed judge rejected Trump’s argument that the order wrongly restricts his First Amendment rights, noting that a criminal defendant’s free speech rights yield to the orderly administration of justice.
Additionally, Chutkan wrote in her opinion that Trump’s “right to a fair trial is not his alone, but belongs also to the government and the public,” a right that she explains can be harmed by allowing out-of-court statements to affect the proceedings.
The public’s right is in particular focus in this historic case: A former president is accused of using the powers of his office to remain in command, while running to reclaim the position and making near-daily posts and statements decrying the prosecution as a “witch hunt.”
Chutkan’s reversal comes as Trump has been fined a total of $15,000 for violating the terms of a similar gag order imposed in his civil fraud trial in Manhattan.
Judge Arthur Engoron hit Trump with two fines — first for $5,000, and another for $10,000 — after the former president posted a picture of Engoron’s court clerk with Senate Majority Leader Chuck Schumer, calling her his “girlfriend” as a way to paint the case and the court as politically biased against him.
Trump received an unlikely voice of support in his fight against the gag order from the American Civil Liberties Union, a civil rights organization that filed over 246 lawsuits against him while he was president. The group argued that the order was unconstitutionally broad and vague, wrongly infringed on both Trump's right to speak and the public's right to hear from a leading presidential candidate.
However, the group did not call for the order to be completely revoked; instead, it recommended that Chutkan provide more defined guidelines for Trump's speech.
In her order, Chutkan tried to do just that, pointing to two of Trump’s recent social media posts, one that would be acceptable under the gag order and another that is clearly a violation, to set more concrete boundaries for what Trump can and cannot say.
The first post from Oct. 20, after the order was imposed but before it was stayed, rails against the “Election Rigging Biden Administration” for only going after those who want to “catch and expose the rigging dogs,” meaning himself. Trump also calls his looming federal trials in Washington and Florida corrupt.
Chutkan explains that this statement would not violate the order, as it does not target certain individuals and therefore is well within Trump’s right to make.
However, a second post — about Trump's former chief of staff Mark Meadows and his reported immunity deal with Smith to testify before a federal grand jury in Washington, calling Meadows a “weakling” and a “coward” — would almost certainly violate the gag order, Chutkan said.
“The statement singles out a foreseeable witness for purposes of characterizing his potentially unfavorable testimony as a ‘lie’ ‘mad[e] up’ to secure immunity,” she wrote, and explained that his comment is an attack likely meant to intimidate Meadows to keep him from testifying in this case.
Trump is unlike any other criminal defendant, as he posts and makes both types of statements at a near-constant rate to a massive online following, many of whom are more than willing to act against those Trump describes as targeting him. Chutkan has already received at least one racist death threat from a Trump supporter after he repeatedly denounced her as biased against him.
In his request for the gag order, Smith and his team cited instances where Trump took to social media to lambast his perceived enemies — such as former Vice President Mike Pence who, until Saturday, was a challenger in the presidential race — and praise his allies, like Rudy Giuliani.
Prosecutors were concerned his posts could lead Trump’s supporters to harass and threaten opponents, influence potential jurors or intimidate potential witnesses who aren't public figures into not testifying.
Chutkan declined to adopt the special counsel’s recommendation that she change the terms of Trump’s pretrial release conditions to prevent inflammatory comments, which would have given her another avenue to rebuke Trump. But with the gag order reinstated, Chutkan can choose how she wishes to punish any future violations: with a fine, a contempt of court charge or, potentially, imprisonment.
She has not specified in any orders or during a hearing about the gag order how she would enforce it.
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