Oct 23, 2023

Donald Trump's gag orders.

Image: Gage Skidmore
Image: Gage Skidmore

Are his rights being violated?

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

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Today, we're breaking down the gag orders against Trump. Plus, a question about China's influence in South America.

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Quick hits.

  1. Israel continues to carry out airstrikes in Gaza, as well as at two airports in Syria and a mosque in the West Bank that was purportedly being used by militants. Separately, the U.S. shot down cruise missiles fired from Yemen that were believed to be headed toward Israel. Two of the 212 hostages being held by Hamas were also released back into Israel. (The latest)
  2. Independent video analysis done by The Wall Street Journal (video) and the Associated Press (analysis) concluded that the rockets that struck al-Ahli Arab Hospital were fired from inside Gaza.
  3. Nine Republican contenders are now in the running for House Speaker after Rep. Jim Jordan (R-OH) was voted out as the nominee. (The latest)
  4. Trump adviser Kenneth Chesebro took a plea deal in the Georgia election fraud trial, becoming the third person to plead guilty in that case. (The deal
  5. Travis King, the U.S. soldier who was returned to the states after crossing into North Korea, was charged with desertion and other crimes, including assaulting officers and possessing sexual images of a child. (The charges)

Today's topic.

Donald Trump's gag orders. Former President Trump has been put under gag orders in two separate trials where he is a defendant. In a civil fraud trial on Friday, Judge Arthur Engoron fined Trump $5,000 and floated the idea of jailing him for defying a partial gag order that required him to remove a social media post criticizing the judge's law clerk. 

In a separate federal case on the accusations Trump tried to illegally undo his 2020 election loss, federal Judge Tanya Chutkan barred Trump last Monday from verbally attacking prosecutors, potential witnesses, and participating government staff. Pointing to social media posts calling Special Counsel Jack Smith a “deranged lunatic” and a “thug,” Judge Chutkan said she wouldn't allow Trump to launch a pretrial smear campaign against prosecutors. On Friday, hours after Trump was fined for violating the partial gag order in the civil lawsuit, Chutkan temporarily lifted her own gag order while Trump is appealing it.

Issuance of the gag order — in the Chutkan case in particular — has ignited a debate about free speech rights and the degree to which a judge should be able to limit Trump's activities as a defendant during a presidential campaign. After Chutkan handed the gag order down, Trump’s defense team quickly objected with a scathing public statement.

“By restricting President Trump’s speech, the Gag Order eviscerates the rights of his audiences, including hundreds of millions of American citizens who the Court now forbids from listening to President Trump’s thoughts on important issues,” the defense wrote.

Chutkan replied that Trump can still criticize the Justice Department and assert claims of innocence, but he can't smear prosecutors or likely witnesses in a way that could spur his supporters to threaten people involved in the case. 

Today, we're going to break down some arguments from the left and right, then my take.


What the right is saying.

  • The right is opposed to the gag orders in both cases, arguing they amount to a restriction of Trump’s constitutionally protected speech. 
  • Some concede that Trump’s comments about the cases have been inflammatory but say a gag order isn’t the appropriate response. 
  • Others criticize both Judge Chutkan and Judge Engoron for abusing their power. 

The Wall Street Journal editorial board questioned how Trump can be “ordered not to talk about Mike Pence’s role on Jan. 6.”

Judge Chutkan is “right that no court would put up with Mr. Trump’s broadsides if he were any old defendant,” the board wrote. “Yet there also has never been a criminal defendant like Mr. Trump, who remains, in spite of it all, the leading political opponent of the sitting President… Mr. Trump will be permitted to attack former Vice President Mike Pence, who’s running against him, ‘but he may not criticize Mr. Pence about the events in this case.’” That restriction “sounds like core political speech and different from insults toward court functionaries.”

“Our guess is that Mr. Trump welcomes the gag order, notwithstanding his protests. It fuels his main campaign theme that Republicans should vote for him because he is a martyr for them,” the board added. “What many of Mr. Trump’s critics don’t understand is that most Republicans don’t like the former President’s churlish behavior. What they like even less, however, is the idea that Mr. Trump’s fulminations against Mr. Smith might be reason to jail him.”

In PJ Media, David Harsanyi wrote “hate Trump all you like, the gag order is still wrong.”

“I understand the disdain some conservatives feel for the former president. I share the sentiment. But if you’re cheering on a judge who’s inhibiting political speech on rickety grounds, you’re no friend of the ‘democracy’ or the Constitution,” Harsanyi said. “Who is Chutkan to dictate the contours of a presidential candidate’s political speech? What if one of the ‘participating government staff’ or a family member is compromised by partisanship? Moreover, preemptively suggesting that without gagging, Trump will engage in a ‘smear campaign’ is as prejudicial to the case as any of the inflammatory things Trump has thrown around.”

“The Justice Department now plays a big part in Trump’s campaign for the presidency — and probably his legal case, as well. If the state’s accusations can be spread throughout the media before a trial, why can’t the defendant speak openly, as well? In the name of fairness, Chutkan contends that Trump does not enjoy unfettered First Amendment rights because he might intimidate witnesses. It’s already illegal to intimidate witnesses. Charge him if he does it. Laws already exist to cover all the other premises Smith has used to rationalize the gag order.”

In National Review, Andrew C. McCarthy called Engoron’s gag order “dubious.”

“Trump’s remarks were offensive but constitutionally permissible. The First Amendment protects obnoxious speech, political speech, and obnoxious political speech. Trump is engaged in an election campaign in which his opponents, their supporters, and the media are uninhibited in terms of what they may say about the case against him. He has a right to argue that the state’s lawsuit is a political vendetta, and that the elected-Democrat judge is in on it.”

“Let Trump rant. If Greenfield and Schumer want to avail themselves of the defamation laws, they have that right. I’d suggest that the best way to deal with Trump’s provocations is to ignore them rather than draw more attention to them by vehement denials,” McCarthy said. “It is also worth observing that Engoron is largely responsible for this circus — and not just because of his mugging for the cameras… Not content with telling Trump he had no hope, Engoron’s 35-page opinion oozes with contempt for him. It is one thing to rule against a litigant; Engoron’s adjective-rich opus teems with scorn.”


What the left is saying.

  • The left is critical of Trump’s behavior but mixed on whether the gag orders are the right course of action.
  • Some say the gag orders could play into Trump’s strategy of framing himself as the victim of political harassment. 
  • Others contend that Trump’s comments have been egregious enough to warrant a targeted gag order. 

In The Atlantic, David A. Graham wrote about “Judge Chutkan’s impossible choice.”

The order “appears narrower than what prosecutors sought” and allows Trump to “continue attacking the Justice Department, President Joe Biden, and others—including Chutkan herself—as long as his comments do not directly bear on the case,” Graham said. “The dilemma for Chutkan is that almost any course she chooses threatens rule of law. She can hardly allow Trump to do things that she believes could corrupt the proceedings or intimidate witnesses, as the government alleges he has done. That would either erode the court’s ability to police every defendant, or else it would suggest that Trump doesn’t have to follow the same rules as everyone else.”

Judge Chutkan has said Trump’s “campaign rhetoric” has no place in the courtroom, “but the campaign rhetoric is not meant for her—it’s meant to influence voters, and convince them that Trump is subject to political persecution,” Graham said. “This leads to more impossible choices. First, she’ll have to rule on what falls afoul of the gag order and what doesn’t. Second, she’ll have to find ways to enforce any violations she does find. His campaign will be happy to portray any attempt to do so as more evidence of political persecution.”

In the Los Angeles Times, Erwin Chemerinsky said Chutkan’s gag order “may be satisfying. But it isn’t constitutional.” 

“Although I often wish that Donald Trump would shut up, he has a constitutional right not to. A federal judge went too far in restricting his free expression Monday when she imposed a gag order on the former president,” Chemerinsky wrote. “I certainly understand Chutkan’s desire to limit such speech, and this is obviously a unique case with no similar precedents. But basic 1st Amendment principles cast serious doubt on the judge’s order. The Supreme Court has long held that court orders prohibiting speech constitute ‘prior restraint’ and are allowed only in extraordinary and compelling circumstances.”

“It is impossible to imagine that Trump’s attacks will change how the prosecutors behave. And given all that Trump has said and all that has been said about the events of Jan. 6, it is inconceivable that more speech will do much more to prejudice prospective jurors,” Chemerinsky added. “The judge imposed a gag order on Trump because his speech is often unpleasant and offensive. But that is simply not a basis for restricting speech under the 1st Amendment. We may loathe what Trump says, but we must defend his right to say it.”

In the Washington Post, Jennifer Rubin argued “if ever a defendant deserved a gag order, it’s Donald Trump.”

“If this were any other American, even another candidate for office, the court would be compelled to act. But we have heard the apologists for Trump: The Justice Department and courts are trampling on Trump’s First Amendment right and ‘interfering’ with the 2024 election. A gag order would make matters worse. Implicit is the recognition that Trump’s campaign is about maligning the judicial system, casting aspersions on the rule of law and threatening people. But, of course, a perverse campaign strategy cannot be deployed as an excuse for wreaking havoc on the judicial system,” Rubin said.

“The former president’s defenders appear to believe Trump should derive special treatment by virtue of his decision to run for office, a blatant attempt to cast any prosecution as political persecution. Their argument gives the back of the hand to the principle that there is one standard for all in our judicial system. Worse, these Trump enablers cavalierly ignore the very real danger he poses to judges, prosecutors, court personnel and witnesses. It amounts to legal nihilism that places Trump’s desire to return to office above the interests of the rule of law and the safety of others.”


My take.

  • Trump should be treated like any other defendant.
  • I’m unsure about when gag orders like these become genuine threats to political speech.
  • More than anything I want the integrity of the case to stay intact. 

This is a really tough one for me because it exists at the intersection of two competing ideals I care a great deal about.

The first is that Trump should be treated like any other criminal defendant. As I said when Trump's first indictments came down, I was compelled by the argument made by Jonathan Katz: Prosecute them all. Better to hold everyone's feet to the fire (from Clinton to Trump) than only some people — and better to make all the rich and powerful people in our country feel like they operate under the same laws as everyone else.

Fundamentally, that means treating all people, even former presidents, with the same even hand we want everyone to be treated with. Putting aside that many of Trump's defenders view the charges as politically motivated in the first place, they’d also argue that it is unfair to limit his political speech more than his political opponents’, especially during a presidential campaign. But my point is more about how he gets to be a criminal defendant. Does he get to do a bunch of things nobody else would ever be permitted to, like posting threatening and disparaging things about judges and clerks on social media? My answer is no. Obviously not. He should be treated the same as any defendant, which justifies a gag order.

At the same time, I’m generally inclined to always support more speech. It may be that a standard is being evenly applied to Trump, but that the standard is overbearing. And furthermore, in Trump’s specific case, issuing a gag order creates two problems:

First, a broad gag order in the New York civil suit or the election fraud case could legitimately hamper Trump’s  campaign for president. And while some people may say that’s the price he pays for January 6, saying the issue is as simple as "he made his bed, now he has to lie in it" seems wrong to me. Trump is innocent until proven guilty, and I don't like the way it feels to imagine his speech being limited while he remains legally innocent.

Second, the nature of the Chutkan gag order in particular is broad in a way that strikes me as alarming. For instance, she said that Trump can't criticize Mike Pence about the case related to January 6, which creates a situation where Pence is free to criticize Trump on the campaign trail but Trump is limited in how he can reply. Again: he made his bed. Again: Innocent until proven guilty.

Ultimately, I think Trump has clearly stepped across lines he shouldn't be allowed to and the feeling of a gag order on him just makes me a little squeamish. But I do see some middle ground here. The best case scenario now is that the judge's threat reels in some of the more outrageous things Trump has said or done, like posting the social media account of a clerk in the civil fraud case. There are lines that no defendant should cross, and judges are right to protect witnesses and staff members from mobs that Trump is capable of kicking up against them.

But we still need to tread carefully. Not only do we want to limit the ways in which judges or court rooms can limit people's speech (that goes for anyone, not just former presidents), both of these judges also risk further martyring Trump the more they try to silence him. Their goal should be to walk that line while keeping the integrity of this case intact — which means ensuring witnesses can testify and members of the court can do their jobs without fear of reprisal. 


Your questions, answered.

Q: I feel that in recent years America’s influence in South and Central America has diminished, that China has slowly crept into the area and that can and will raise questions about the USA’s strategic position. What are your thoughts on this?

— Anonymous

Tangle: First, my expertise is in American politics, and while that comes with some knowledge on global affairs, China’s investment in South America is a whole different ball game. So that’s just to say that when it comes to geopolitics, international diplomacy, and military maneuvers related to that region: That’s not quite in my wheelhouse.

But I picked this question for a reason, which is to emphasize how maneuvering for influence is the way that mature economies generally fight each other. There’s been a lot of focus on all-out armed conflict recently — Russia and Ukraine, Azerbaijan and Armenia, Israel and Palestine — but for the U.S., we typically pursue a strategy of "asymmetric warfare" these days. We usually don’t get involved unless we have an enormous advantage — and that’s true for a lot of other major countries, too. That means we spend most of our time jockeying to guarantee enormous advantages in areas where there could be conflict.

A good example of this is Taiwan. Right now, the U.S. and its allies are attempting to control China’s coastline so we can have an asymmetric advantage in a hypothetical conflict. This is the strategy of defending the First Island Chain: Malaysia, the Philippines, Japan, and South Korea are all allies in that chain, but Taiwan is the missing piece. Both countries know that, which is why the competition for power or influence over Taiwan is so important.

That is part of the game China is playing in Central and South America. Some Central American countries recognize Taiwan, which hurts China’s diplomatic efforts to control the island. So, China offers trade and investment in return for just ignoring Taiwan — which wins them influence in countries that are close to their largest adversary, the U.S. For China, that’s a win-win.

With a long-term view, the U.S. government has been aware of this investment arms race for several years and has already been responding. But in the short term, when you add in immigration messaging and aid delivery, the strategy gets complicated. I'm not entirely sure what the government’s next moves will be. But the inroads China has made will change the regional dynamics for the next few decades, and I imagine there will be plenty of competition between the two countries there going forward.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.


Under the radar.

The war between Israel and Hamas has already generated a spike in misinformation and deceptive posts being shared on social media, and the problem is particularly acute on one platform: X. NewsGuard, a company that tracks misinformation on social media, published a report last week that identified a common set of false or unsubstantiated claims about the conflict that had been viewed more than 100 million times globally on X in just one week. Further, these posts are overwhelmingly being published by "verified" accounts — those who pay $8 a month to receive a blue checkmark on their profile that had historically conveyed legitimacy. After analyzing the 250 most popular posts about the war on X that included prominent false or unsubstantiated information, NewsGuard found that verified users were behind 186 (74%) of them. The platform’s verification system has “turned out to be a boon for bad actors sharing misinformation about the Israel-Hamas War. For less than the cost of a movie ticket, they have gained the added credibility associated with the once-prestigious blue checkmark and enabling them to reach a larger audience on the platform,” NewsGuard’s report said. Fast Company has the story. 


Numbers.

  • $250 million. The amount New York attorney general Letitia James is seeking to recover from Trump in civil court for fraudulently overvaluing his assets. 
  • $2 billion. The amount by which Trump is alleged to have falsely inflated his net worth, according to AG James’s lawsuit. 
  • 17 days. The amount of time a Truth Social post from Trump that was found to have violated Judge Engoron’s gag order remained on Trump’s campaign website after it was ordered to be taken down. 
  • $1,000. The maximum fine Judge Chutkan could theoretically impose for violations of a gag order. 
  • 6 months. The maximum prison sentence Judge Chutkan could theoretically order for violations of a gag order. 
  • 2024. The year Trump’s federal trial on conspiracy charges related to the 2020 election is scheduled to begin. 

The extras.

  • One year ago today we didn't have a newsletter, but we just published a subscribers-only interview with Ivan Moore about ranked choice voting.
  • The most clicked link in Thursday's newsletter was the exchange between former president Trump and Judge Engoron.
  • Let's just be sure: 738 Tangle readers responded to our poll asking who was responsible for the explosion at the al-Ahli Hospital in Gaza, with 56% saying the Palestinian Islamic Jihad. 22% said Hamas, 2% said the Israeli Defense Forces. 20% were unsure or had no opinion. "Are questions like this helpful?", one respondent asked. "Even experts have to hedge their comments in situations like these. Let the dust settle and allow more evidence to accumulate."
  • Nothing to do with politics: A kestrel that lost the ability to fly but learned how to paint
  • Take the poll. What do you think about the gag orders issued against Donald Trump? Let us know!

New video.

Last week, we released a YouTube version of my conversation with Christopher Dowling-Magill about surviving conversion therapy.


Have a nice day.

In Clackamas County in Oregon, a simple idea is turning something dirty into something clean — harvesting natural gas from natural waste. In the summer of 2020, workers at Clackamas County’s water treatment facility could see wildfire flames closing in on the wastewater treatment plant. Power plants were failing all over the state, and if the water treatment facility lost power it could flood the Willamette River with untreated waste and cause untold environmental damage. While the facility wasn’t harmed by the fire and the Willamette was spared, the incident highlighted how storing power on-site could build resiliency into the system. Since August 2021, the plant has been pumping out renewable power produced from methane, a natural byproduct of human waste decomposing in an oxygen-free environment. By turning human waste into power, other facilities like the one in Clackamas County can become energy generators instead of consumers, while continuing to clean water that’s returned to the local ecosystem. Good Good Good has the story.


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