A remarkable thing happened on Monday in former President Donald Trump’s criminal trial over his alleged attempts to overturn the 2020 election. U.S. District Court Judge Tanya Chutkan issued a gag order effectively prohibiting Trump, currently the leading GOP candidate for president, from defending himself in public ahead of the 2024 presidential election.
The gag order means Trump cannot speak publicly about the trial, potential witnesses, court personnel, or Special Counsel Jack Smith, the federal prosecutor who requested the gag order and characterized it as “modest” and “permissible.”
As my colleague Tristan Justice pointed out in these pages yesterday, that means Trump is barred from campaigning against his chief political opponent, which isn’t just President Joe Biden but the entire federal government, especially the Justice Department.
It also means there’s a potentially limitless number of things Trump could say on the campaign trail that would violate the gag order. Julie Kelly, who was in the courtroom Monday, noted on X (formerly Twitter) that there was an entire debate about whether it would be appropriate to allow Trump to use the phrase “Crooked Joe Biden.” A reporter for OANN relayed an exchange between Chutkan and Trump’s defense attorney about whether Trump could call Smith a “thug.” Chutkan, an Obama appointee with a long track record of politically charged Jan. 6 rulings, said she didn’t think such language was “necessary to advance a political campaign,” as if she’s any more competent to decide what sort of campaign rhetoric is necessary than she is to assess the value of Mar-a-Lago.
But set aside the insanity of a federal judge telling a leading presidential candidate — or any political candidate — what they can and cannot say on the campaign trail, as if judges are now the supreme arbiters of American political discourse. The gag order just underscores how insane and farcical this entire trial is.
Recall that Smith didn’t indict Trump on charges that he incited a riot on Jan. 6 or that he committed treason — nothing as concrete as that. He indicted Trump for expressing his opinion that the 2020 election was stolen. You might think it’s crazy that Trump thinks he won in 2020, but millions of Americans believe it — and they are free to say so thanks to the First Amendment. Trump, too, should be free to say it as often and as loudly as he likes. As Jonathan Turley said when Trump was indicted back in August, “If you take a red pen to all of the material presumptively protected by the First Amendment, you can reduce much of the indictment to haiku.”
The actual charges Trump faces are conspiracy to obstruct an official proceeding, obstruction of and an attempt to obstruct an official proceeding, and conspiracy against rights. What all that amounts to, though, is merely an assertion that Trump’s statements about the election were false and he knew it. But even if that were the case, so what? This is America. You’re allowed to lie in a political campaign. Joe Biden lies all the time, as does his lackey Merrick Garland at the Justice Department. Whether Trump lied is a political question to be decided by voters, not some thug like Jack Smith.
So what the trial comes down to is that Trump said some things about 2020 that Biden and Garland and Smith didn’t like, and they decided to prosecute him for it. That’s it. That’s the whole case. Any judge with even a passing familiarity with the First Amendment would have thrown the case out on day one.
But that didn’t happen, and now we have this garbage commie show trial unfolding in the middle of a presidential election cycle. How is Trump supposed to campaign when he’s barred from talking about the No. 1 threat to the rule of law and free elections in America? He’s not, which is the entire point of this: to keep Trump out of the White House.
Stepping back though, this isn’t only about Trump. It’s also about what the federal government thinks it can do under the guise of enforcing the law. If the Justice Department can indict Trump for speaking out about the election, it can indict any one of us for the same thing, the First Amendment be damned.
My colleague Sean Davis said Trump should reject this “Soviet insanity” and just violate the gag order to force Chutkan and the Biden administration to choose whether to dispense with the pretense of the rule of law and free elections or just go ahead and rig the election out in the open by jailing Trump in the middle of the election for the crime of calling Biden’s DOJ corrupt. “Make them do it, so we can finally dispense with the fiction that democracy actually exists in this country anymore. Make them do it out in the open for the entire world to see.”
He’s right. The entire premise of this trial should be rejected. The whole thing is illegitimate. It makes a mockery of our justice system and a mockery of our Constitution. There’s no point debating the specifics of it with Democrats, of arguing over this or that legal aspect of the trial, because to do so concedes the premise that Trump might have committed a crime by expressing his opinion about the 2020 election and that you can be prosecuted for something like that in America.
At a rally in Iowa on Monday, Trump said he was “willing to go to jail if that’s what it takes for our country to win and become a democracy again.” Let’s hope he’s serious, because the only way out of this is for Trump to press the issue, defy the illegitimate gag order, and let the chips fall where they may.