Judge's gag order against Trump 'unconstitutional': Report

October 26, 2023
Ryan Ledendecker

Former President Donald Trump was recently hit with several gag orders from the judge in charge of his federal election interference case, and observers from all sides of the political spectrum believe it to be bad practice. 

Erwin Chemerinsky of the Los Angeles Times recently penned a piece reported by Real Clear Investigations in which he argued that the gag order imposed on the former president is "unconstitutional."

Last week, U.S. District Judge Tanya Chutkan issued the gag order in an attempt to punish Trump for making any inflammatory statements about prosecutors, court personnel and witnesses in the case.

Trump and his lawyers challenged the gag order, and Chutkan agreed, at least temporarily, while both sides argue it.

1st Amendment principles

Chemerinsky recapped how Chutkan ultimately decided to issue the gag order.

"This is not about whether I like the language Mr. Trump uses,” Chutkan said in announcing the gag order. "This is about language that presents a danger to the administration of justice."

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."

Using prior cases, Chemerinsky argued that in this particular case, Trump shouldn't be silenced, based on longstanding law.

"What is particularly troubling about Chutkan’s order is that it seems primarily concerned with protecting prosecutors and court personnel from Trump’s vitriol. The law is clear that speech can’t be restricted to prevent government officials from being criticized or even vilified," he wrote.

He added, "The Supreme Court has repeatedly held that the 1st Amendment protects a right to criticize government officials, even harshly," pointing to more case law backing the argument.

Jack Smith wants it back

Special Counsel Jack Smith urged the judge to reinstate the gag order, according to CBS News.

The outlet noted:

In the court filing, special counsel Jack Smith's team also argued that Judge Tanya Chutkan should consider making the gag order a permanent condition of Trump's post-indictment release, suggesting that she should effectively tie the former president's pretrial liberties to his cooperation with the court's order.

Trump's side argued that the order was ridiculous, at the very least, and uncalled for.

"No Court in American history has imposed a gag order on a ... defendant who is campaigning for public office-least of all on the leading candidate for President," his lawyers said.

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