How can he be ordered not to talk about Mike Pence’s role on Jan. 6?
WSJ Editorial Board
Donald Trump is running a 2024 presidential campaign based on grievance, and on Monday he earned another talking point: Federal Judge Tanya Chutkan imposed a “tailored” gag order barring Mr. Trump from disparaging witnesses, prosecutors and court employees in the case against his efforts to undo the 2020 election in the run-up to the Jan. 6, 2021, riot.
“Mr. Trump can certainly claim he’s being unfairly prosecuted,” Judge Chutkan said during the hearing, according to the Journal’s report. “But I cannot imagine any other criminal case in which a defendant is permitted to call the prosecutor deranged, or a thug, and I will not permit it here simply because the defendant is running a political campaign.”
She’s right that no court would put up with Mr. Trump’s broadsides if he were any old defendant. To protest the New York civil fraud case against him, Mr. Trump this month posted a picture of the judge’s clerk next to Sen. Chuck Schumer, while mocking her as “Schumer’s girlfriend.” That resulted in a gag order focused on court personnel. “Personal attacks on members of my court staff are unacceptable, inappropriate and I will not tolerate them under any circumstances,” the judge said.
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. Judge Chutkan’s written gag order hadn’t arrived by our deadline, but during the hearing she appeared to be cutting it mighty fine.
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,” she said, according to the Washington Post. Hang on: If Mr. Trump shows up to the next Republican primary debate, on Nov. 8, he has to say “no comment” if Mr. Pence pushes him about Jan. 6?
That sounds like core political speech and different from insults toward court functionaries. The same goes for special counsel Jack Smith, who’s a political figure in his own right, and who shouldn’t be immune from criticism. If Judge Chutkan thinks it’s over the line for the defendant to call Mr. Smith a “thug,” what about saying he’s “politically motivated”? Mr. Trump pledged to appeal the gag order, and the First Amendment questions aren’t frivolous.
Also, how is Judge Chutkan prepared to punish infractions? She could fine or even jail Mr. Trump, though that would only feed Mr. Trump’s persecution campaign narrative. The better part of wisdom might have been for Judge Chutkan simply to let Mr. Trump continue to yell into the internet to his heart’s content, or at least until he started specifically targeting jurors or court staff.
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. A Trump spokesman on Monday called Judge Chutkan’s order “another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden, who was granted the right to muzzle his political opponent.”
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.
