Trump appeal of gag order likely to center on speech that ‘targets’

Former President Trump’s appeal of a gag order in his election interference case will put under a microscope limitations on his speech he sees as a danger to his candidacy, but legal experts say they stand a good chance of surviving.

Judge Tanya Chutkan agreed Friday to pause her order from taking effect while Trump seeks to topple it. Her directive would otherwise have barred the former president from speech that would “target” foreseeable witnesses, prosecutors in the case and court personnel. 

“Undisputed testimony cited by the government demonstrates that when defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed,” Chutkan wrote, adding that Trump’s status as a candidate “cannot excuse statements that would otherwise intolerably jeopardize these proceedings.”

The order left him free to complain about being prosecuted and to attack President Biden, as well as primary rivals such as former Vice President Mike Pence, who spoke to prosecutors ahead of charges being filed.

Trump has signaled a First Amendment challenge to the order, complaining it hamstrings his speech during the campaign season.

Legal experts, however, say the risk of threats to those attacked by Trump underpin Chutkan’s rationale for the order and could protect it during appeal.

“Given the showing the government made of specific threats as a result of Mr. Trump’s statements, it seems to me that an order of some kind is pretty clearly warranted. The only real question is, what does it mean when it says that he can’t make statements targeting these people?” asked Kevin Baine, a leading First Amendment attorney.

“I think the Court of Appeals could well be troubled by the vagueness of the term ‘targeting.’”

The Justice Department had asked Chutkan to restrict Trump from making comments that were disparaging, inflammatory or intimidating. 

But Chutkan sidestepped that by settling on speech that targets the parties listed in her order.

“It is really narrowly drawn. And what it does not prohibit is vast. He can criticize the Justice Department, he can criticize the Biden organization, he can criticize the system. He can claim that the prosecutions against him are illegitimate, and a witch hunt, and all that other stuff and much more,” said Jeff Robbins, a former state and federal prosecutor now in private practice. 

“So I think her choice of the word ‘target’ was deliberately elastic.”

But that elasticity could also create problems for prosecutors defending the order going forward.

Trump’s team, in asking Chutkan to for a temporary stay, said the order suffers from a “fatal defect — unconstitutional vagueness.”  

His attorneys said it would be difficult to see where the line has been drawn between criticizing those covered by the order and language that targets them.

“The carve-outs seem to authorize ‘criticizing the government generally, including the current administration or the Department of Justice,’ but that does not seem to include criticizing the most relevant figure of the Department of Justice, i.e., Jack Smith,” they wrote in a Friday brief, referring to the special counsel who brought charges against Trump.

“The carve-outs supposedly allow President Trump to state ‘that his prosecution is politically motivated,’ but the Gag Order prevents him from ‘targeting’ the specific actors involved in his prosecution, so it prevents him from giving any specific or detailed justification for this claim.”

Some of Trump’s own interpretation of the order was on display just as soon as it was temporarily lifted.

While a statement released right after Chutkan’s decision last Monday complied with the order, soon after the stay, Trump returned to name-calling Smith, once again labeling him as “deranged.”

Robbins said the order has more leeway than Trump has characterized it as having.

“He can, it seems to me under this order, still broadly criticize people contained in the ambit of the order,” he said.

“By choosing the word ‘target,’ she even refined that and drew a narrow distinction between language which is broadly critical and language which is reasonably likely to incite violence or harassment against them.”

But Baine said that’s not entirely clear, noting that while some language like calling someone a “thug” or suggesting they deserve to die are mentioned as specific examples, Chutkan otherwise refers to the prosecutors’ arguments.

“Part of what addresses the question of what is covered is her citation to the pages of the prosecution’s brief that set forth examples of the kinds of things that, in their view, warrant a gag order. Some of those things are more egregious than others,” he said.

“One of the examples was, ‘Mike Pence has gone over to the dark side.’ Well, a court could well ask, ‘Well, why can’t Donald Trump say that?’”

Pence holds an interesting spot in the order as both a witness and as someone who Chutkan gave Trump the go-ahead to criticize as a candidate — something Baine said will likely be a prime area for exploration as Trump’s appeal of the order moves forward.

“If I were a judge I’d be saying, ‘What does this order prohibit Donald Trump from saying about Mike Pence?’” Baine said.

But both Robbins and Baine said they expect the order to be largely upheld under further review.

“If the argument is going to be that it’s too restrictive, they lose because she has on the basis of evidence that people who have been the focus of Trump’s denunciations have in fact been threatened. And that’s going to be regarded as enough by the appeals court,” Robbins said.

Baine also pointed to the numerous examples of threats stemming from Trump’s speech initially laid out by prosecutors.

“The government has presented a strong case for some kind of a gag order. And that would suggest that the Court of Appeals will be reluctant to overturn it,” he said.

“The only question is whether the court will think this one needs to be modified or narrowed, or more carefully defined.”