Former President Donald Trump is facing two controversial restrictions on his speech as he fends off multiple indictments that will likely influence public perception in his presidential campaign. It’s difficult to determine the ultimate impact of his Washington and New York gag orders, but they’ve prompted debate over how political candidates can be restricted while running for office.
1. The DC Order Is Unprecedented
U.S. District Court Judge Tanya Chutkan’s gag order restricts President Trump’s ability to speak about that case and its underlying events. Assuming that President Trump wins the GOP nomination, his main opponent is currently slated to be the man whose administration is prosecuting him for how he challenged the results of their previous contest.
President Trump’s legal team cited two cases that resemble their client’s case but weren’t anywhere near the scale of a presidential election. One involved an appellate court overturning a gag order on former Rep. Harold E. Ford (D-Tenn.). The U.S. Court of Appeals for the Sixth Circuit ruled in 1987 that Mr. Ford “is entitled to fight the obvious damage to his political reputation in the press and in the court of public opinion, as well as in the courtroom and on the floor of Congress. He will soon be up for reelection.”
The court said, “His opponents will attack him as an indicted felon. He will be unable to respond in kind if the District Court’s order remains in place. He will be unable to inform his constituents of his point of view.”
President Trump similarly may encounter roadblocks to sharing his views with the millions of people who voted for him in 2020.
The U.S. Court of Appeals for the Fifth Circuit also defended a gag order in 2000, ruling that it allowed former Louisiana Insurance Commissioner Jim Brown “to answer, without hindrance, the charges of his opponents regarding his indictment throughout” his race for office.
It said that the lower court “made special allowances for Mr. Brown’s reelection campaign by lifting most of the order (with the exception of the wiretap recordings) for the duration of the campaign.”
2. Orders Could Limit How Trump Campaigns
Judge Chutkan’s order allows President Trump to generally criticize his likely opponent, President Joe Biden, but restricts his ability to target certain individuals in the case. Depending on how President Biden and others speak about the case, that could prove problematic for President Trump’s ability to defend himself during the campaign.The gag order bans the “targeting” of witnesses and others involved in the case, which has prompted criticism from many, including the American Civil Liberties Union (ACLU), that it’s vague to the point of violating President Trump’s constitutional right to free speech. His attorneys argue that it creates a “prior restraint” and too much uncertainty surrounding how he can respond to criticisms related to the case or events underlying it.
Judge Chutkan rejected those arguments, as well as concerns that her use of “interested parties” was too vague in describing to whom the order applied. Instead, she said, the hearing on Oct. 16 and the text of the original order provide enough clarification of who and what it covered.
One of President Trump’s attorneys in his New York civil fraud trial has similarly argued that the gag order imposed by New York State Supreme Court Justice Arthur Engoron violates President Trump’s freedom of speech—something Justice Engoron found unpersuasive.
Both Justice Engoron and Judge Chutkan have cited an interest in protecting court personnel from harassment. Judge Chutkan also argued that President Trump’s statements had provoked prior harassment and that restricting his speech was critical to maintaining the integrity of the trial.
It’s also unclear whether President Trump’s objections will succeed, as legal experts have argued that judges enjoy broad discretion in how much they can limit defendants’ speech in criminal cases. Regardless, President Trump’s legal team is trying.
3. Headed Toward Appeals
President Trump’s legal team has indicated it will appeal Justice Engoron’s gag order.It has already appealed Judge Chutkan’s order within the DC Circuit. Dean Sauer, a former Missouri solicitor general and one of President Trump’s attorneys, filed an appeal on President Trump’s behalf in the U.S. Court of Appeals for the DC Circuit.
The case is set to be heard on Nov. 20, by a three-judge panel that includes two appointed by former President Barack Obama and one appointed by President Biden. The gag order is currently on hold as the judges consider whether it violates the First Amendment.
Roger Severino, a former Trump administration official and current vice president of domestic policy for the Heritage Foundation, suggested that the former president might not have a great shot at winning the appeal.
If his attorneys appeal to the U.S. Supreme Court, President Trump will face a 6–3 conservative majority that he’s largely responsible for installing.
“The Supreme Court’s a different matter,” Mr. Severino said, noting that the court has “been very, very skeptical of hostile prosecutions of politicians.” He pointed to a corruption conviction against former Republican Virginia Gov. Bob McDonnell that the court tossed. Mr. McDonnell was also prosecuted by the special counsel Jack Smith who is pursuing President Trump.
Given the unprecedented nature of the DC order, it’s possible the justices would take up his case. This court also has a reputation for defending First Amendment rights but, it’s hard to predict how the nation’s highest court will act. President Trump notably castigated the court in 2020 when it declined to take up Texas’ challenge to the presidential election results.
“The Supreme Court really let us down,“ he wrote on Twitter at the time. ”No Wisdom, No Courage!” In another tweet, he called the decision a “grave miscarriage of justice.”
4. Stiff Penalties for Defiance
Disobeying court orders could prompt, as it already has, relatively steep penalties. Justice Engoron has already slapped the former president with $15,000 in fines for his actions following the imposition of gag orders in that trial.President Trump could be held in contempt of court and sent to jail if he violates orders in either case. In the DC case, President Trump has shown that he’s not willing to back down from a fight, but it’s unclear if he will intentionally violate Judge Chutkan’s order while it’s in effect.
Some of the uncertainty surrounding his penalties stems from uncertainty surrounding the DC order itself. When Judge Chutkan lifted an administrative stay on her order, she stated that President Trump made statements that “almost certainly” would have violated the order if it wasn’t temporarily lifted.
She pointed to a TruthSocial post in which President Trump implied his former chief of staff, Mark Meadows, would be a coward if he took a plea deal with the special counsel’s office.
Another statement, “Corrupt Trials started by our Political Opponent,” didn’t violate the order, according to Judge Chutkan. As she noted, her order allows President Trump to attack the nature of the prosecution. It instructs him, however, not to target the special counsel or his staff.
Justice Engoron placed a $5,000 fine on President Trump after a disparaging post about the judge’s law clerk remained on one of the former president’s campaign sites.
5. Not Hurting His Popularity
Does President Trump want to be held in contempt? That’s the question some are asking, given how he has responded to the orders.
Much of his support appears to come from his base, which remains steadfastly loyal. But recent head-to-head matchups have shown President Trump beating President Biden in 2024. Meanwhile, President Trump has been gaining in the GOP primary field as his main but distant rival, Florida Gov. Ron DeSantis, sheds support.
“Despite the indictments and his legal issues, despite what some consider vitriolic language to the point where judges have threatened him, his numbers have not gone down,” Tim Malloy, a Quinnipiac University polling analyst, told The Epoch Times. “His numbers have actually gone up.”
