Potential gag order for Donald Trump presents problem for judge

A proposed gag order aimed at reining in Donald Trump’s incendiary rhetoric puts the judge overseeing his federal election interference case in a tricky position: She must balance the need to protect the integrity of the legal proceedings against the First Amendment rights of a presidential candidate to defend himself in public.

U.S. District Judge Tanya Chutkan will hear arguments Monday in Washington over whether Trump has gone too far with remarks such as calling prosecutors a “team of thugs” and one possible witness “a gutless pig.”

It is the biggest test yet for Chutkan, underscoring the unprecedented complexities of prosecuting the former Republican president as the judge vows not to let political considerations guide her decisions.

Ending the stream of Trump’s harsh language would make the case easier to manage. But among the difficult questions Chutkan must navigate is how any gag order might be enforced and how one could be fashioned that does not risk provoking Trump’s base and fueling his claims of political persecution as he campaigns to retake the White House in 2024.

Short of issuing an order, Chutkan has already suggested that inflammatory comments could force her to move up the trial, now scheduled to begin in March, to guard against tainting the jury pool. Judges can threaten gag order violators with fines or jail time, but jailing a presidential candidate could prompt serious political blowback and pose logistical hurdles.

Chutkan, who was nominated to the bench by President Barack Obama, isn’t the first judge to confront the consequences of Trump’s speech. The judge in his civil fraud trial in New York recently imposed a limited gag order prohibiting personal attacks against court personnel following a social media post that maligned the judge’s principal clerk.

There is some limited precedent for restricting speech of political candidates who are criminal defendants.

In one case, a federal appeals court in 1987 lifted a gag order on U.S. Rep. Harold Ford Sr., a Tennessee Democrat charged in a fraud case. Ford, who was ultimately acquitted, claimed the case brought under Republican President Ronald Reagan’s administration was racially and politically motivated.

Ford’s gag order prohibited him from even sharing his opinion of or discussing facts of the case. The court noted that Ford would soon be up for reelection and said the gag order would unfairly prevent him from responding to attacks from his political opponents and block his constituents from hearing the “views of their congressman on this issue of undoubted public importance.”

Another appeals court in 2000 upheld a gag order challenged by then-Louisiana Insurance Commissioner Jim Brown in a fraud case, noting the order allowed assertions of innocence and other general statements about the case.