Conservative legal scholars believe the judge in former President Donald Trump’s federal election interference case overstepped her bounds by issuing a gag order that prevents the former president from attacking potential witnesses, including former Vice President Mike Pence, and suggested the decision may lead to the case being taken up by the U.S. Supreme Court.
Speaking with The Daily Caller, court observers said Judge Tanya Chutkan, an Obama appointee, erred in placing a first-of-its-kind restriction on the rights of a presidential candidate to speak freely about matters that are tangential to the election. President Trump has frequently appeared for arraignments and procedural court hearings, garnering a wall of media coverage that he has leveraged as he lashes out against Democratic prosecutors and special counsel Jack Smith, a Biden Justice Department appointee overseeing the case.
“Not only have we never before had a former president or leading presidential candidate being indicted in four different felony cases with 91 counts across those four cases, but we’ve also never, to my knowledge, had a leading presidential candidate who has had a gag order issued against him basically limiting what he’s allowed to say on the campaign trail,” Zach Smith, Heritage Foundation legal fellow and former assistant U.S. attorney, told the Daily Caller News Foundation.
In her ruling, Judge Chutkan said the GOP frontrunner remains free to criticize the court system broadly and even Pence as a milquetoast rival, but that specific attacks related to matters in the case would be grounds for consequences. Chutkan did not specify what recriminations may take place but left open the possibility that President Trump could see his access to social media restricted where he frequently vents about his latest case to his followers on Truth Social.
Lawyer and former federal prosecutor Bill Shipley said the unprecedented gag order could result in Trump’s case being taken up before the U.S. Supreme Court should his legal team choose to appeal the decision.
“There could be two avenues — both a direct appeal as part of the criminal case, and also a civil action seeking an injunction of the order on the basis that it is a violation of his constitutional rights as a candidate and part of the campaign,” he said, noting this would likely be “a first of its kind” action.
“Yes — there is case law that says a defendant in a criminal case can have his First Amendment rights to speak about the case curtailed,” he wrote. “But there has never been a case involving a candidate for POTUS being put in that position during the course of the campaign.”
“Barring a criminal defendant from publicly criticizing the prosecutor and judge is clearly unconstitutional,” Article III Project founder and president Mike Davis wrote on X. “Gagging a presidential candidate is what happens in third-world Marxist hellholes. The DC Circuit must fix DC Obama Judge Tanya Chutkan’s clearly erroneous ruling.”
Barring a criminal defendant from publicly criticizing the prosecutor and judge is clearly unconstitutional.
Gagging a presidential candidate is what happens in third-world Marxist hellholes.
The DC Circuit must fix DC Obama Judge Tanya Chutkan's clearly erroneous ruling. https://t.co/Sf7DtDlQEK
— 🇺🇸 Mike Davis 🇺🇸 (@mrddmia) October 16, 2023
President Trump said Monday that he would appeal the decision and would be willing to go to jail over his right to speak his mind about all things at any time.
“I’ll be the only politician in history that runs with a gag order where I’m not allowed to criticize people,” Trump said in a speech Monday. “We’ll appeal it, and we’ll see.”