Free-speech showdown: How Trump is setting the stage to defy any limits on what he can say about his criminal cases   

One of the more crucial pillars of the rule of law is the willingness of citizens and public officials to obey court orders. At different times in American history, that iron-clad principle has been threatened, in showdowns between the courts and people subject to those orders.   

President Andrew Jackson set an early precedent for such challenges in 1832 when he said about a Supreme Court opinion written by one of the most famous of chief justices, “John Marshall has made his decision now let him enforce it.” More than 100 years later, in the aftermath of Brown v. Board of Education, Mississippi Sen. James Eastland declared, “the South will not abide by nor obey this legislative decision by a political body”; Virginia Sen. Harry Byrd called for “massive resistance” to the court’s desegregation decision.   

The prospect of outright defiance will almost certainly be in play again if U.S. District Court Judge Tanya S. Chutkan grants special counsel Jack Smith’s request that she impose a limited gag order on former President Donald Trump. Trump’s lawyers filed a response to Smith’s request on Monday, claiming that “The Proposed Gag Order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent.”

This response gives us a preview of how Trump is likely to behave during the many months before the trial actually commences. 

Jack Smith framed his request as a necessary response to Trump’s out-of-court statements and attacks on judicial officials and others, which pose a threat of violence. He wrote, “The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets. It is clear that the threats are prompted by the defendant’s repeated and relentless posts.”  

Trump has already laid the groundwork for defiance by attacking Judge Chutkan’s impartiality and characterizing the request for a gag order as a threat to freedom of speech and election interference. He is building on previous attacks on the courts, which he has used to channel his sense of grievance and portray himself as a victim of a politicized legal process.  

The ex-president has said about Smith’s motion, “They want to see if they can silence me. So the media — the fake news — will ask me a question. ‘I’m sorry, I won’t be able to answer’ — how do you think we’d do in that election? So we are going to have a little bit of a fun with that, I think. That’s a tough one. Can you imagine?”  

Smith’s motion has put Judge Chutkan in a difficult position.   

As the New York Times notes, “There is little precedent for how the judge overseeing the case, Tanya S. Chutkan, should think about how to weigh strong constitutional protections for political speech against ensuring the functioning of the judicial process and the safety of the people participating in it. It is one more example of the challenges of seeking to hold to account a norm-shattering former president … as he makes another bid for the White House with a message that his opponents have weaponized the criminal justice system against him.”  

Gag orders that limit out-of-court comments made by participants in criminal trials have a long history and are constitutional if they are necessary to ensure a fair trial, to ensure that witnesses are not intimidated, and to ensure that jurors can act in an impartial way.   

But such legal niceties are of little interest to Donald Trump and most of his supporters. Right from the start of Trump’s political career, he has attacked judges and courts for any decisions that he didn’t like.  

In June 2016, Trump responded to the rulings of U.S. District Court Judge Gonzalo O. Curiel in a class action lawsuit against Trump University, attacking Judge Curiel and calling into question his impartiality.   

In a CNN interview he said,  “I’ve been treated very unfairly by this judge. Now, this judge is of Mexican heritage, I’m building a wall!” Trump continued: “He’s a member of a society where — you know — very pro-Mexico and that’s fine, it’s all fine, but I think — I think — he should recuse himself.”  

In 2017, after assuming office, Trump attacked judges for failing to back the initial version of his Muslim ban. As he put it, “The courts are not helping us, I have to be honest. It’s ridiculous. Somebody said I should not criticize judges, Okay, I’ll criticize judges.”  

According to the Brennan Center for Justice at New York University, as the litigation over the Muslim ban continued, Trump returned repeatedly to this theme. “Moments ago,” he said, “I learned that a district court in Hawaii, part of the much overturned Ninth Circuit Court […] I have to be nice, otherwise I’ll be criticized for speaking poorly about our courts.” Referring to what he called “the fake news, he added: “I’ll be criticized by these people, among the most dishonest people in the world … for speaking harshly about our courts.”   

But speak harshly he did, calling the decision “unprecedented judicial overreach.”  

In February 2020, he attacked Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg by name. He accused them of being biased against him and demanded that they recuse themselves in any case to which he was a party.  

That same month, he spoke out about a juror hearing the case against his longtime friend Roger Stone for lying to Congress. “There has rarely been a juror so tainted,” Trump tweeted, “as the forewoman in the Roger Stone case. Look at her background. She never revealed her hatred of ‘Trump’ and Stone. She was totally biased, as is the judge. Roger wasn’t even working on my campaign. Miscarriage of justice. Sad to watch!”  

In the aftermath of his indictment in the election interference case, Trump has been unsparing in his criticism of Judge Chutkan. Last month he called her “highly partisan” and alleged that she “obviously wants me behind bars. VERY BIASED & UNFAIR!”   

In a motion filed on Sept. 11 asking her to recuse herself, Trump claimed that “in connection with other cases, [Judge Chutkan] suggested that President Trump should be prosecuted and imprisoned. Such statements, made before this case began and without due process, are inherently disqualifying.”  

He also cited a statement Chutkan made in a hearing about Trump White House records in late-2021, in which she said, “A president is not king” and that Trump “is not President.” His recusal motion argued that those comments undermined the public’s “confidence that President Trump’s constitutional rights are being protected by an unbiased judicial officer.”   

So the stage is set for quite a drama.   

If Judge Chutkan imposes a gag order and if Trump defies it, he will have the backing of millions of his supporters. As far back as February 2017, 51 percent of the people who voted for him the previous year said that Trump should be able to overturn decisions by judges if he disagreed with them.  

In another poll taken that same month, 77 percent of those who called themselves political conservatives said they trusted Donald Trump more than the courts.  

This year, surveys have shown that 80 percent of Republicans believe that the prosecutions of the former president are political. A full 86 percent of Republicans think that the indictments are part of an effort to derail Trump‘s bid to recapture the presidency, and most of them see them as “an attack’ on people like them.  

All of this shows how high the stakes are in the decision before Judge Chutkan.  

Like judges at other crucial moments this country’s history, she has the chance to make a stand for the rule of law and show that not even an ex-president is above the law. She can remind every American that, as former Supreme Court Justice Potter Stewart once observed, “in the fair administration of justice, no man can be a judge in his own case.” Like Stewart, she needs to insist that respect for the judicial process “is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.” 

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not necessarily represent those of Amherst College.