By
Only U.S. District Judge Tanya Chutkan knows how difficult it was for her to put a limited gag order on Donald Trump this week. But however tough a call it was, the judge presiding over the federal election interference case will face an almost impossible task when she inevitably must enforce it.
To be clear, the difficulty isn’t over whether some version of a gag order was warranted. Before Chutkan granted it, special counsel Jack Smith had laid out the former president’s menacing statements against various actors across the legal system. That much was clear to the judge, who, during a Monday hearing on the gag order request, said it was "troubling" that Trump called Smith “deranged” and the special counsel's staff “thugs."
During that hearing in Washington, Chutkan asked Trump lawyer John Lauro: If you call certain people "thugs" enough times, doesn’t that suggest that someone should get them off the streets?
The real challenge, then, wasn't justifying the order but figuring out what to do if (and more likely, when) Trump violates it. As Chutkan acknowledged Monday, an order is sort of pointless without an enforcement mechanism.
So, what’s the mechanism?
At one point during the hearing, the judge asked the prosecution what it would seek for a violation — whether it would be revoking supervised release, financial penalties, home detention, criminal contempt, or moving up the trial date. Prosecutor Molly Gaston noted all those options are available.
As if to suggest the absurdity — or even impossibility — of detaining the leading 2024 GOP presidential candidate, Trump lawyer Lauro asked Chutkan: “Is Your Honor going to put President Trump in jail during the course of a campaign?”
Of course, Trump hopes to avoid any of those consequences, as his legal team signaled he’s appealing the order, published Tuesday, which stated:
All interested parties in this matter, including the parties and their counsel, are prohibited from making any public statements, or directing others to make any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.
Chutkan added:
This Order shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.
Trump has pleaded not guilty in the federal election interference case, which is set for trial in March. It’s the first trial scheduled of his four criminal cases (he has pleaded not guilty in all of them).
Indeed, moving the trial up, as Chutkan had alluded to previously as well, may be the most significant realistic consequence Trump faces. While the former president (like anyone) wouldn’t want to suffer any possible consequences, this is all happening against the backdrop of the impending trial itself, which Trump has desperately tried to avoid and will no doubt continue to try and delay in this and all his cases.
But whatever the enforcement mechanism is — and it’s hard to think one won’t be called for — the gag order isn’t worth much without one.
Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.