Judge Chutkan’s Impossible Choice
When Judge Tanya Chutkan of the federal district court for D.C. was assigned the trial of Donald Trump for his attempt to steal the election, according to the journalist Robert Draper, she asked a friend to pray for her. Chutkan’s decision today to impose a gag order on the former president, her most consequential pronouncement in the case so far, shows why she’ll need prayer, if not outright divine wisdom, to navigate the challenge before her. Chutkan faces a series of impossible choices.
Her first impossible choice: whether to impose any gag order at all. As she described it in court, the order she granted appears narrower than what prosecutors sought. It prohibits disparaging remarks only of witnesses, prosecutors, and court staff, but allows Trump to continue attacking the Justice Department, President Joe Biden, and others—including Chutkan herself—as long as his comments do not directly bear on the case.
Chutkan’s order followed a two-hour hearing in Washington, in which prosecutors argued that Trump’s comments would poison the chance for a fair trial, while the defense attorney John Lauro repeatedly—and to Chutkan’s dismay—called any restriction “censorship.” The judge probed both prosecutors and defense with piercing questions. She peppered Assistant U.S. Attorney Molly Gaston, representing Special Counsel Jack Smith’s team, with questions about their proposal, siding with Lauro’s contention that the government was asking for something too broad. But she reminded the defense, “Mr. Trump is facing criminal charges. He does not get to respond to every criticism of him if his response would affect potential witnesses. That’s the bottom line here."
The dilemma for Chutkan is that almost any course she chooses threatens rule of law. She can hardly allow Trump to do things that she believes could corrupt the proceedings or intimidate witnesses, as the government alleges he has done. That would either erode the court’s ability to police every defendant, or else it would suggest that Trump doesn’t have to follow the same rules as everyone else. Gaston framed the question for Chutkan just this way: “What Mr. Lauro is saying is the defendant is above the law and he is not subject to the rules like any other defendant is.”
Trump does have legitimate interests as a political candidate in being able to speak (mostly) freely, and federal courts appropriately show little interest in policing candidates’ comments on the stump. Yet even considering those needs, the judge was troubled by some of Trump’s remarks in recent weeks, including attacks on Smith’s wife and on a law clerk for New York State Supreme Court Justice Arthur Engoron, who is overseeing a civil fraud case against Trump. She also pointed to Trump’s suggestion last month that Mark Milley, the former chairman of the Joint Chief of Staff, should be executed for treason. This language “frankly risks a real possibility of violence,” she said, adding: “We are in here today because of the statements that he’s made … right up to last night. I’m not confident that without some kind of restriction we won’t be in here all the time.”
The parties might be in court all the time anyway. Anyone familiar with Trump knows that he has no respect for rules and restrictions. He is already bound by federal laws against intimidating witnesses, and Chutkan previously placed standard limitations on him, including communicating directly with known witnesses. Lauro stated in court that Trump had complied with these conditions. “What you have put in place is working,” he said. Chutkan replied, laughing: “I have to take issue with that.”
Lauro promised to appeal any gag order, and his remarks in the courtroom, as well as Trump’s recent public statements, previewed the backlash to come. The attorney argued that Trump’s First Amendment rights were being abridged. He also complained that the whole thing amounted to election interference by Biden’s Justice Department, and that a gag order could allow Biden to attack Trump without Trump being able to respond. (In reality, Biden has been conspicuously quiet on the criminal cases against Trump, for fear of being seen as interfering.)
“Joe Biden is not a party to this case. He’s not subject to conditions of release,” Chutkan replied—though her eventual order did make clear that Trump could criticize Biden. The Trump campaign quickly took the opportunity, saying in a statement that the decision “is an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden, who was granted the right to muzzle his political opponent.”
The judge was dismissive of these complaints. “Mr. Trump is a criminal defendant. He is facing four felony charges. He is under the supervision of the criminal-justice system and he must comply with the conditions of release. He does not have the right to say and do exactly as he pleases,” she said. On another occasion, she scolded Lauro, saying, “I do not need to hear any campaign rhetoric in my courtroom.”
But the campaign rhetoric is not meant for her—it’s meant to influence voters, and convince them that Trump is subject to political persecution. Now that she has placed new conditions on him, he’s certain to test the limitations. This leads to more impossible choices. First, she’ll have to rule on what falls afoul of the gag order and what doesn’t. Second, she’ll have to find ways to enforce any violations she does find. His campaign will be happy to portray any attempt to do so as more evidence of political persecution.
Lauro seemed to be almost daring her to do that. In one question, he tried again to argue that Trump’s unique status as a criminally charged presidential candidate should get him out of the usual rules, wondering what would happen if Trump blurted something out about a witness during a presidential debate (should be choose to actually participate in one, as he so far has not).
“Is your honor going to put President Trump in jail during the campaign?” Lauro asked. How could she dare to lock up a presidential frontrunner? And yet, if he thumbs his nose at the law, how can she not?