The torture order on Trump in the election case leaves even more difficult questions

It took Judge Tanya S. Chutkan three rounds of written submissions over the past six weeks and more than two hours of courtroom arguments this week to resolve problems with the gag order she imposed on former President Donald J. Trump.

And that may have been the easy part.

Judge Chutkan released the official written order on Tuesday. She described in three short pages how Mr. Trump is now barred from making public comments targeting members of her judicial staff, special counsel Jack Smith and all members of his staff, and “any reasonably foreseeable witnesses” in the broader federal criminal case in in which the former president was accused of wanting to nullify the 2020 elections.

But the order left unanswered the most difficult questions related to the gagging of Mr. Trump. Judge Chutkan will still have to determine on a case-by-case basis which, if any, statements by the former president violate her ruling. And she would have to decide how to punish him if they did.

Hours after Judge Chutkan announced at a hearing Monday in Federal District Court in Washington that he would impose the order, Mr. Trump was already attacking it as an attack on his First Amendment rights and vowing to appeal.

“She doesn’t like me too much — she’s disliked me my whole life,” he said that night at a campaign event in Iowa.

He then misrepresented the content of Judge Chutkan’s judgment.

“Do you know what a gag order is?” Mr. Trump, the current contender for the 2024 Republican nomination, asked the crowd. “You cannot speak ill of your opponent.”

In fact, Judge Chutkan’s order leaves Mr. Trump free to criticize President Biden, along with his administration and the Justice Department. It also allows him to attack the “campaign platforms or policies” of Mike Pence, who was his vice president, is likely to be a witness in the case and will also be Mr Trump’s rival in the 2024 primary.

Judge Chutkan’s order leaves Mr. Trump free to attack her as well. It also says he can plead innocent and continue to argue, as he has repeatedly done, that his prosecution on charges that he tried to stay in power against the will of voters is “politically motivated.”

Still, the language in the order is broad enough in places that it could lead to conflict over whether certain statements by Mr. Trump are covered by it.

Near the end of the order, for example, Judge Chutkan wrote that Mr. Trump was not allowed to “target” various participants in the case. That word could be interpreted as banning a wide range of statements, not just those that are “disparaging and inflammatory or intimidating” — the category prosecutors sought.

The text of the order also states that Mr. Trump is prohibited from attacking any potential witnesses “or the substance of their testimony.” The lack of detail on how to define those attacks left open the possibility that any negative remark about a witness — even one unrelated to the case — could constitute a violation of the order.

There were also ambiguities during the hearing itself.

At one point Monday, Molly Gaston, the prosecutor, appeared to give conflicting answers to a hypothetical question posed by Judge Chutkan: Would Mr. Trump violate the gag order if he said that “corrupt Joe Biden” authorized or directed the indictment in case as a way to interfere with next year’s elections?

Ms. Gaston’s initial answer was “yes” as she suggested the proposed order would prohibit Mr. Trump from lying about Mr. Biden’s role in the case. Mr. Trump, she told the judge, cannot make any statements that “falsely suggest that President Biden directed this prosecution, which he did not.”

But when Judge Chutkan analyzed the issue in detail, Ms. Gaston seemed to give a different answer. This time, she said that if Mr. Trump claimed that Mr. Biden ordered the Justice Department to go after him, that would not be a violation of the order.

That was because “Joe Biden is not a party, witness, attorney, court staff or potential juror” in the case, Ms. Gaston said, so he would not be covered by the warrant.

Mr. Trump has often tried, without evidence, to portray Mr. Smith as acting at Mr. Biden’s direction, making the three conspiracy charges at the heart of the case. And just hours before Judge Chutkan issued a written version of her order, he directly addressed the ambiguous issue she explored Monday with Ms. Gaston.

“Corrupt Joe Biden told the DOJ to indict TRUMP hoping it would help him in his campaign against me and the Republicans,” he wrote Tuesday morning on Truth Social, his social media platform. “In other words, he accused his political opponent.”

Mr Trump has also made a habit of calling Mr Smith “deranged” and describing members of his team as “thugs”. Moreover, he attacked potential witnesses in the case, including Gen. Mark A. Milley, the former chairman of the Joint Chiefs of Staff.

After General Milley gave several interviews critical of Mr Trump, the former president suggested he had committed treason and may have faced execution in the past.

Judge Chutkan argued that Mr. Trump should not be allowed to carry out attacks like these for a simple reason: They put people at risk.

“The undisputed testimony cited by the government shows that when the defendant publicly attacks individuals, including on issues related to this case,” she wrote, “those individuals are consequently threatened and harassed.”

But while Judge Chutkan’s order was clear that Mr. Trump’s attacks could be threatening or even lead to violence, there was no word on what she would do to enforce it.

Violating a gag order is treated as a violation of any court order – as contempt of court, which can result in a reprimand, fine or jail time. But how to play it out is complicated, legal experts say.

One type of contempt is “civil contempt” — which can also appear in a criminal case. It is usually used to compel future compliance with an order, such as forcing a recalcitrant witness to stop defying a subpoena and testify. The second type is “criminal contempt”, which is more focused on punishing previous disobedience of orders and justifying the authority of the court.

Earlier disputes over gag orders most often arose in the context of gagging defense attorneys. Margaret C. Tarkingtonlaw professor at Indiana University, Indianapolis, a specialist in attorneys’ free speech rights, said it’s normal – though not always — judges treated violations of gag orders as criminal contempt.

That’s important because in federal court, judges can’t unilaterally fine or order someone to jail for contempt. Instead, such an allegation is treated as a new criminal offense which requires the appointment of a prosecutor and another trial — including the right to a jury verdict.

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