5 takeaways as Trump faces gag order in election interference case 

A federal judge on Monday largely sided with the Justice Department in restricting former President Trump from attacking witnesses in his election interference case, as well as prosecutors and court staff. 

While the coming order allows Trump to criticize President Biden, the Justice Department, the judge overseeing the matter and his prosecution in general, the former president will be blocked from making disparaging, inflammatory and intimidating comments about some parties in the Jan. 6 case. 

Here are five takeaways on the decision.  

Trump’s status as candidate clashes with status as defendant  

The breadth of Trump’s First Amendment rights were put under a microscope Monday, as Judge Tanya Chutkan noted limits on free speech and the ways they can be narrowed for criminal defendants.  

Chutkan noted there were already limitations placed on Trump’s speech as a condition for his release, including barring any effort to intimidate witnesses, jurors or court staff. 

“He must comply with his conditions of release. He does not have the right to say and do exactly as he pleases,” she said. 

Trump’s attorneys said any gag order was an attempt to limit the candidate’s First Amendment rights, but Chutkan said Trump has no absolute protection to free speech. 

“First Amendment protections yield to the administration of justice and to the protection of witnesses,” she said, spelling out the contours of her coming order. 

Trump attorney John Lauro complained of the “censorship” that would result from an order, calling the case “inextricably intertwined” with Trump’s presidential campaign due to timing. 

“What’s happening in this courtroom right now will affect this country for years to come. President Trump is entitled to respond to it,” Lauro said. “These prosecutors want to prevent President Trump from speaking out on the issues of the day.” 

But Chutkan shot back at the use of the term censorship.  

“You keep talking about censorship like the defendant has unfettered First Amendment rights. He doesn’t,” she said. 

Chutkan dissects Trump’s Truth Social posts 

Chutkan read off several of Trump’s Truth Social posts during the hearing and referenced one post Trump made just hours earlier, saying some of the statements raised the possibility of violence. 

In particular, Chutkan took aim at how Trump has repeatedly described special counsel Jack Smith as a “thug.” 

“Tell me how the word ‘thug’ is justified here?” Chutkan pressed Lauro. 

Chutkan also raised alarm about Trump’s recent post attacking the principal clerk of the New York judge presiding over Trump’s civil fraud trial. The post led that judge to impose a narrow gag order against the former president. 

Chutkan at Monday’s hearing said attacking court employees poses “tremendous risk” to their safety, adding that they are “just doing their jobs.” 

“I was deeply disturbed that just last week, while the motion for a gag order in this case was pending, Trump targeted a staff member of a judge in another case,” Chutkan said. 

The two incidents nod to the frequency of the statements Trump makes about the case, many of which would likely cross the line of the coming order. 

“I’m not confident that without some kind of restriction, we won’t be in here all the time,” Chutkan said. 

She went on to bring up Trump’s post last month attacking Gen. Mark Milley, the then-chairman of the Joint Chiefs of Staff, who is a potential witness. Trump said Milley’s actions were so egregious that “in times gone by, the punishment would have been DEATH!” 

Molly Gaston, a senior prosecutor on the case, said Trump’s Milley post was a message to all witnesses that “if you come after the defendant, he will come after you.” 

Lauro insisted Trump wasn’t calling for Milley’s execution and that it wasn’t a threat. Lauro raised concerns about how, under the gag order, Milley and other witnesses could still attack Trump, but not the other way around.  

Hypotheticals showcase latitude sought by Trump team 

To assess the limits of the order the Justice Department was seeking, Chutkan rolled out a series of hypothetical statements Trump could make about his former Attorney General Bill Barr.  

The exchange highlighted the deep divide between Trump’s legal team and prosecutors, with the former president’s lawyers backing the increasingly incendiary remarks suggested by Chutkan.  

Lauro defended Trump’s right to make a number of comments about Barr, including that he should be “executed for his treasonous acts” and others encouraging him to “stay loyal” and that he “better keep his mouth shut.” 

While Lauro said he thought encouraging Barr’s execution was not advisable, it should be permitted as it’s not a threat to Barr. 

Lauro said another statement made by Trump that encouraged Barr to stay loyal in order to gain a position in his administration if he were reelected is permissible because part of the campaign is letting the country know who he would hire. Lauro also said telling Barr to “keep his mouth shut” should be allowed if it was stated in response to Barr’s broader criticisms of Trump.  

As a final question, Chutakn asked Lauro if Trump should be able to say Barr “is a slimy liar and can’t be trusted.” 

“Well, I’m not going to say truth is a defense,” Lauro joked. 

The Justice Department argued that each of the first three remarks defended by Lauro would be an intimidating remark about a witness, while the last was attacking the character of a witness and would be a comment that could color how he would be perceived by jurors. 

Chutkan loses patience with political rhetoric in court 

Since the indictment, Chutkan has battled to keep separate the legal debates and politics surrounding the case.  

Wednesday’s hearing was no different, even as Rep. Marjorie Taylor Greene (R-Ga.) showed up at the courthouse to support Trump. It all built on tensions from earlier hearings in which Chutkan and Lauro have battled.  

“Politics stops at this courthouse door,” Chutkan said at one point in an exchange with Trump’s attorney. 

Lauro began his comments at the hearing by reminding Chutkan that “we’re in the middle of a campaign,” 

“I know, Mr. Lauro, I know,” Chutkan replied. 

Chutkan insisted she would treat Trump like any other defendant, repeatedly scolding Lauro for echoing his client more than answering her questions.  

Lauro at times accused prosecutors of infringing upon Trump’s constitutional rights and “veering towards tyranny.” 

“Please, Mr. Lauro, let’s tone this down,” Chutkan chimed in after the latter comment. 

Lauro responded by saying his voice was toned down. 

“I would ask that you answer my questions,” Chutkan replied.  

The judge on Wednesday again rejected Lauro’s pleas to delay the trial date until after the 2024 election, which Lauro said would resolve the free speech issues. 

“This trial will not yield to the election cycle, and we’re not revisiting the trial date,” Chutkan said. 

Trump’s first out-of-court statements comply 

Within hours of the hearing, Trump and his campaign criticized the gag order while raising money off news of the decision.  

The attacks illustrated how Trump remains able to lash out at President Biden and voice concern over his prosecution — and suggested his team was trying to comply with it. 

“Today’s decision is an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden,” a campaign statement read.  

At a campaign event in Iowa later in the day, Trump said he’ll appeal the order and broadly attacked the Justice Department as “weaponized.” 

“I’ll be the only politician in history that runs with a gag order where I’m not allowed to criticize people. Can you imagine this?” Trump said. 

Notably, none of the various statements name Smith — whom Trump is barred from attacking under the new order — while criticizing Biden and law enforcement, both of which the judge said are fair game.  

“This is not about whether I like the language Mr. Trump uses,” Chutkan said. “This is about language that dangers the administration of justice.”