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Hate Trump All You Like, The Gag Order Is Still Wrong

Posted on Friday, October 20, 2023
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by Outside Contributor
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President Donald J. Trump welcomes members of the press to the State Dining Room Monday, January 14, 2019, where the 2018 NCAA Football National Champions, the Clemson Tigers, will be welcomed with food from Domino’s, McDonald’s, Wendy’s and Burger King. (Official White House Photo by Joyce N. Boghosian)

This week, U.S. District Court Judge Tanya Chutkan overseeing United States v. Donald Trump issued a gag order prohibiting a leading presidential candidate, Donald Trump, from engaging in speech aimed at “government staff,” among others, during his trial.

Listen, I understand the disdain some conservatives feel for the former president. I share the sentiment. But if you’re cheering on a judge who’s inhibiting political speech on rickety grounds, you’re no friend of the “democracy” or the Constitution.

“Mr. Trump may still vigorously seek public support as a presidential candidate, debate policies and people related to that candidacy, criticize the current administration and assert his belief that this prosecution is politically motivated,” Chutkan explained. “But those critical First Amendment freedoms do not allow him to launch a pre-trial smear campaign against participating government staff, their families and foreseeable witnesses.”

Who is Chutkan to dictate the contours of a presidential candidate’s political speech? What if one of the “participating government staff” or a family member is compromised by partisanship? Moreover, preemptively suggesting that without gagging, Trump will engage in a “smear campaign” is as prejudicial to the case as any of the inflammatory things Trump has thrown around. It implies that any accusation now aimed at prosecutors is untrue.

Trump contends that he is being railroaded by special counsel Jack Smith, the longtime federal prosecutor who works on behalf of Democrats and President Joe Biden. You might believe the special counsel is a chaste defender of Lady Justice, but there’s ample evidence that partisan considerations are in play. Fears of a politicized Justice Department are real. As we speak, the head of the Democratic Party is being mollycoddled by the state in a very similar case involving classified documents.

Whatever the case, the Justice Department now plays a big part in Trump’s campaign for the presidency – and probably his legal case, as well. If the state’s accusations can be spread throughout the media before a trial, why can’t the defendant speak openly, as well?

In the name of fairness, Chutkan contends that Trump does not enjoy unfettered First Amendment rights because he might intimidate witnesses. It’s already illegal to intimidate witnesses. Charge him if he does it. Laws already exist to cover all the other premises Smith has used to rationalize the gag order.

The notion that a jury pool is going to be impartial in a trial involving a divisive former president, who is not only a leading contender for the presidency but one of the most famous people on Earth, is absurd. And the notion a D.C. jury pool will be impartial when it comes to Trump is fantastical. There is little that can be done about it. But further gagging the defendant only feeds, at the very minimum, the perception that this is all politically motivated.

Establishment media informs us that the gag order is just “narrow” and meant to “protect the integrity of the trial and the jury pool.” In her Solomonic wisdom, Chutkan cut the state’s request in half. A “narrow” gag order limiting free speech is still a gag order limiting free speech. The fact that Smith was seeking even broader limitations only makes Trump’s claims more plausible.

Smith has also argued that Trump should not be afforded “special treatment” because he’s a candidate. He’s right. No one’s right to defend themselves or to engage in speech should be inhibited, not even during trials (though any good lawyer will tell clients, for their own good, to shut up). Still, gag orders are almost always an unconstitutional prior restraint. For years, the American Civil Liberties Union and similar groups argued the same.

I’m sure many people simply believe Trump deserves it. Think, though, about the precedent: Administrations can now launch prosecutions against political rivals – calibrated to take place in favorable cities and timed to coincide with elections – and then demand gag orders be implemented on those running for office. If you think they won’t do it to others, you haven’t been paying attention.

David Harsanyi is a senior editor at The Federalist. Harsanyi is a nationally syndicated columnist and author of five books — the most recent, “Eurotrash: Why America Must Reject the Failed Ideas of a Dying Continent.” His work has appeared in National Review, the Wall Street Journal, Washington Post, Reason, New York Post and numerous other publications. Follow him on Twitter @davidharsanyi.

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John
John
9 months ago

Is there no honesty and integrity in the legal system any longer? It isn’t just this judge, or this prosecutor, it’s DOZENS of them who seemingly are willing to give up their impartial blinders in favor of binoculars with which to zero in on some political bias. It is most disheartening and foretelling of the future of our system of justice…ruined by a growing number of rotten apples.
Maybe those jokes about lawyers are true…!

Joseph L Sexton
Joseph L Sexton
9 months ago

No one is perfect but in all my 80 something years their were 2 GREAT Presidents, Ronald Reagan & better yet Donald J Trump. they cared about America & made America FIRST. George Washington said “Beware Foreign Entanglements”, put simply MYOB, if not in our interest stay away. I’m tired of our Men & Women dying to make the “War Hawks” rich. As far as RACISM, Affirmative Action IS White Racism. I & a good Woman Friend suffered it losing promotions to lesser knowledged Black People.

paul
paul
9 months ago

no free speech if you are white.

J. FARLEY
J. FARLEY
9 months ago

I was taught from the time I was a child that one of the most important things that American Citizens had over all most other countries in the world was our right to free speech, and we were given that right so we could stand up for ourselves and if we were wrongly accused, the wrongly accused a person was free to express to all that would listen why the accusations were false.
Is it not also tainting the Jury pool when the lies of the Powers to Be and The Fake News Midia are allowed to continue and swell to the point they cover up the truth wrong?
When we allow one to be Silenced, we all are at risk of being Silenced!
Let Freedom Ring Loud and Clear!

Robert Zuccaro
Robert Zuccaro
9 months ago

They can’t silence the truth! Trump could stand in front of a crowd and not say a word and everyone would know what he means.

gin
gin
9 months ago

I’ll vote for him even if I have to write him in. I pray Christ will come soon, but God has his time schedule, and since He alone is good, it’s for good reason, giving more people a chance to claim Christ as Savior.

Jackie
Jackie
9 months ago

Our justice system is no longer just in any sense of the word!! When you can tie up your political opponent with legal issues, fraudulent legal issues, so they can’t enter or win a race is repugnant!!! Any one in the justice system knows that the scales of justice are supposed to be blind which means that no judge, prosecutor, lawyer shall do their job with a personal agenda behind their duties!!!l And that isn’t happening the way it’s supposed to anymore!!l

Doug
Doug
9 months ago

Trump will not abide by this order and will dare the judge to enforce it. This is banana republic stuff and quite laughable.

Jeanette
Jeanette
9 months ago

They will do anything to try and prevent him from being on the ballot..just because they embrace Socialism.

NIcholas Elder
NIcholas Elder
9 months ago

The Biden gestapo and kangaroo court system is now in operation, heaven help us.

A Voter
A Voter
9 months ago

Welcome to the United Police States of America.

Food-for-Thought
Food-for-Thought
9 months ago

“Everyone loves a witch hunt as long as it’s someone else’s witch being hunted.”

Sheri
Sheri
8 months ago

I do not understand the distain any American Patriot has for Trump. First if you have distain for his beliefs of America First, I believe you need to really search yourself. Also you need to find new media sources and educate yourself to what has been going on within our country the last 50-60 years in all levels of our nation. Then make a choice. One World Order under Authoritarian rule by a handful of elitists, czars

David
David
8 months ago

AMAC is a great org and yes the judge has overstepped on the First Amendment

Sue
Sue
9 months ago

We are a democratic republic vs. Democracy. Please look up the difference.

Ezzie
Ezzie
9 months ago

Who says we hate him? LOVE D.Trump! TRUMP 2024

Linda
Linda
9 months ago

Good article. It’s totally unconstitutional and CONGRESS’S HAS the power to disbarred all of SOROS dishonest JUDGES..CODE of CONDUCT…

history
history
9 months ago

Christopher Columbus brought free speech when he discovered America in 1492 and no one should tough that sacred right.

johnh
johnh
9 months ago

If you are innocent, start acting like it……….was advice today from colorado

johnh
johnh
9 months ago

My opinion, the 1st does not give anyone the right to intimidate/bully other citizens. It is not right to ruin the lives of innocent people just because they do not agree with you or perhaps are performing the civic duty of being on a jury.

George Wenz
George Wenz
9 months ago

Or orange.

Silhouette of the President of the United States of America Donald Trump while attending a conference
1960s and 2020s; history repeats itself
Helena, Montana / November 3, 2020: Woman election official directing voter where to park and vote, man in vehicle holding ballot, voting from car outside polling station, poll worker
Red - amac action update

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