Former U.S. President and Republican candidate Donald Trump makes a keynote speech at a Republican fundraising dinner in Columbia, South Carolina, U.S. August 5, 2023.
Sam Wolfe | Reuters
But it’s an open question, they say, whether a gag order could be enforced against Trump, now a top White House contender with a reflexive social media habit and a campaign message built around his self-proclaimed political persecution.
“I think a gag order is likely, I’m just not sure if it will be enforced,” former federal prosecutor Neama Rahmani told CNBC.
“A lot of the judges that I’ve seen cover these types of political cases, they’ve been all bark, no bite,” he said.
A lawyer for Trump did not immediately respond to a request for comment.
Gag orders are usually only imposed when the fairness of a trial is seen to be at risk, legal experts said. The judge will have to weigh First Amendment concerns against the need to prevent attempts to tamper with witnesses or taint the jury pool.
“Ultimately, the burden is on the prosecution to present facts to the judge to show that such orders are necessary in these circumstances,” said Norm Eisen, legal and ethics expert and executive chair of the States United Democracy Center, in a statement to CNBC.
A trial jury is supposed to weigh only the evidence that they have heard or seen in the courtroom. But Trump’s frequent pronouncements about his cases — the most closely watched proceedings in the country — could mark an attempt to influence the case, said Matthew Galluzzo, a former New York prosecutor.
“You don’t usually see somebody so blatantly trying to basically break the rules of trial,” Galluzzo said.
The more Trump sounds off on his cases, the more likely a gag order becomes, said Joshua Ritter, a criminal defense attorney in Los Angeles.
But if such an order comes, it will be “probably more limited than most,” Ritter said, because the judge will have to carefully balance the need to protect the integrity of the trial with Trump’s right to make political speech.
“It becomes a little more tricky,” Ritter said, noting that a “large part” of Trump’s campaign message is that he’s “being persecuted.”
Indeed, Trump’s political operation has heavily featured the indictments in its fundraising pitches and in other campaign messages. A new ad launched over the weekend attacked special counsel Jack Smith and other prosecutors who have brought cases against Trump.
That ad focused largely on Fulton County District Attorney Fani Willis, who is expected to soon seek indictments in her state-level probe of possible interference in Georgia’s 2020 election by Trump and his allies.
Trump has already been limited from posting about some evidence from the Manhattan DA Alvin Bragg’s hush money case on social media. But the DA’s office had stressed that it was not seeking a gag order against Trump, noting he “has a constitutional right to speak publicly about this case.”
If Trump is barred from speaking about parts of one of his federal cases but defies the order, it could put a judge in an unprecedented situation of having to punish a leading presidential candidate.
U.S. District Judge Tanya Chutkan is assigned to Trump’s latest federal case.
“Does Chutkan have the fortitude to either sanction or jail Donald Trump?” Rahmani said. “Maybe, but you have to be willing to enforce that gag order.”
Smith, the federal prosecutor in two of the ex-president’s pending criminal cases, has already submitted a court filing pointing to the social media tirades as a cause for concern.
Smith’s filing Friday evening singled out one of Trump’s posts from Friday afternoon, which declared, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
Smith seeks a protective order that would bar Trump from improperly sharing sensitive evidence in the federal case charging him with trying to overturn his 2020 election loss.
“If the defendant were to begin issuing public posts using details — or, for example, grand jury transcripts — obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case,” Smith wrote.
In response, a Trump campaign spokesperson said that the post referenced in Smith’s filing “is the definition of political speech.” The spokesperson claimed that Trump’s post was not aimed at his legal foes, but rather at “the RINO, China-loving, dishonest special interest groups and Super PACs, like the ones funded by the Koch brothers and the Club for No Growth.” RINO stands of Republicans in Name Only.
In a filing Monday evening, Trump’s attorneys argued that the Department of Justice’s proposed protective order was too broad. The defense attorneys proposed a narrower order that they said would shield “only genuinely sensitive materials from public view.”
Trump “does not contest the government’s claimed interest in restricting some of the documents it must produce,” they wrote. “However, the need to protect that information does not require a blanket gag order over all documents produced by the government.”
In a social media post earlier Monday, Trump claimed that a protective order in the case “would impinge upon my right to FREE SPEECH.” In the same post, Trump said that Smith and the DOJ should be bound by such an order, claiming they are “leaking” information.
Trump has already pleaded not guilty in two other criminal cases. Smith’s office brought charges in Miami federal court stemming from the former president’s retention of classified documents after leaving office in 2021. Manhattan prosecutors, meanwhile, have filed charges of falsifying business records related to hush money payments made to women who say they had extramarital affairs with Trump.
Since pleading not guilty to criminal charges last Thursday — his third indictment of the year, and arguably the most serious — Trump launched into a multiday blitz, venting rage at the prosecutors, the potential witnesses and even the judge overseeing his most recent case.
“THERE IS NO WAY I CAN GET A FAIR TRIAL WITH THE JUDGE ‘ASSIGNED’ TO THE RIDICULOUS FREEDOM OF SPEECH/FAIR ELECTIONS CASE,” Trump wrote in one of three all-caps posts Sunday morning on Truth Social.
“EVERYBODY KNOWS THIS, AND SO DOES SHE!” he wrote.
Chutkan, the judge assigned to the case, is an appointee of former President Barack Obama who has delivered tough sentences to defendants convicted in cases related to the Jan. 6 Capitol riot.
Trump’s criticism of Chutkan came a day after he attacked Mike Pence, his former vice president and a key figure in the indictment who is being eyed as a possible trial witness.
The indictment alleges that after Pence protested the dubious legal theory that he could help Trump’s election efforts by refusing to count certain electoral votes, Trump called him “too honest.” Pence’s presidential campaign has started selling merch touting that quote.
Trump on Saturday denied calling Pence “too honest” and accused his former veep of going to “the Dark Side.”
“He’s delusional, and now he wants to show he’s a tough guy,” Trump wrote on Truth Social.
Pence in a CBS News interview Sunday did not rule out the possibility of offering witness testimony at Trump’s eventual trial.
Trump has also continued to rail against Smith, along with President Joe Biden himself.
The former president has asserted that the government is engaged in a conspiracy to squelch his 2024 presidential campaign by forcing him to spend time and money on his mounting legal troubles.
“THIS IS ALL ABOUT ELECTION INTERFERENCE!” Trump wrote Monday afternoon, essentially accusing his opponents of the very crimes he has been charged with.
Trump has called for the U.S. Supreme Court to “intercede” against the Biden administration. There is no evidence of Biden’s involvement in Trump’s criminal prosecutions.