The Donald Trump gag order red herring

| 9:00 pm EDT November 3, 2023
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Donald Trump’s on again, off again gag order in his federal criminal trial is now briefly off again. This time the court of appeals has temporarily issued a stay of Judge Chutkan’s gag order while it hears Trump’s appeal. Trump will lose, and the gag order will be back in place in a couple weeks. But that’s not the real story here.

In fact, while the gag order isn’t entirely meaningless, it’s become something of a red herring. Even as political enthusiasts try to follow along with this criminal case on social media, a whole lot of folks have become mistakenly obsessed with the idea of a “gag order” as if it were a magic wand. If there’s a gag order in place, Trump is magically not allowed to say anything at all. Without a gag order, Trump is magically allowed to say anything he wants But this is not how anything works – at all.

In reality this gag order is narrow in scope and only blocks Trump from making specific kinds of remarks about specific topics. For instance, Trump’s social media attacks on Judge Chutkan are not covered under the gag order, because the judge chose not to include herself in the prohibited topics. Moreover, a gag order centers around handing out pretrial penalties – fines and such – for violations. It’s about keeping a defendant in line and on track for trial.

When it comes to things like attacking or trying to coerce witnesses, that’s a felony whether there’s a gag order in place or not. Trump’s social media attack on Mark Meadows, at a time when the gag order wasn’t in place, is just as much of a felony as Trump’s social media attack on Bill Barr while the gag order was in place. Felony witness tampering doesn’t magically become legal just because a gag order is stayed.

Jack Smith now has to decide whether it’s the strategically correct move to hit Trump with felony witness tampering charges. The DOJ often likes to tack on such charges heading into trial in order to ensure that the defendant ends up convicted on something. If Smith does bring such charges, you’ll see that the gag order has nothing to do with it.

So I really wouldn’t worry too much about this whole “gag order” drama. Donald Trump is not magically free to engage in witness intimidation while the gag order is temporarily on hold. If he’s stupid enough to think the law works that way, then he’ll find out the hard way. In the meantime, nothing coming out of Trump’s mouth is helping him in any way. He’s just talking himself into a corner. And in that sense he’s welcome to keep doing it.