Donald Trump just made a stupid legal move in the Judge Chutkan case – and it backfired on him
I’ve said before that I think Donald Trump’s disappearing and reappearing gag orders are overblown in terms of importance. He’d need to go way overboard for a gag order to be what gets him thrown in prison. And nothing he says during the absence of a gag order is going to help him strategically. It’s his criminal trials that’ll decide his fate. But to the extent that gag orders do matter, it’s safe to say that Trump just blew it.
At the risk of sounding obvious, one reason judges are called “judges” is that they have to make a lot of judgment calls. It’s the jury who ultimately decides guilt. But the judge has to decide all the ancillary matters, such as how strictly to enforce something like a gag order, and how harshly to crack down on someone for defying it. What is the penalty for saying mean things on social media about a potential witness? How many times does a gag order have to be violated before the penalties get serious? The criminal code doesn’t really speak to this stuff. Like I said, it’s a judgment call.
The judge’s job is to assign pretrial limitations and penalties sufficient to get the case safely to trial and nothing more, so that the jury can fairly decide guilt. To that end, while judges have enormous discretion on things like enforcing gag orders, they generally try not to go overboard. That said, when they do hand down a serious penalty for something like violating a gag order, that penalty automatically sticks, unless the appeals court decides it’s too harsh.
That’s why Donald Trump just made a big mistake by asking the appeals court to weigh in on Judge Tanya Chutkan’s gag order. The appeals court did strike down one specific aspect of the gag order, but otherwise signed off on the entire rest of it. In other words the appeals court just gave Chutkan the green light. If Trump violates this gag order Chutkan can hand down whatever penalties she feels are appropriate, without having to worry about whether the appeals court thinks the gag order is overbearing. After all, the appeals court just gave the thumbs up to her gag order.
So now Donald Trump is in a position where he’s likely to face more serious penalties for any violations of his gag order. After all, it’s not like Judge Chutkan has to worry about being overruled. Trump’s stupid appeal already took care of that.
