Trump’s Consequences for Crossing the Line: A Gag Order That Opens the Door for More

Regardless of whether Donald Trump bought himself a Glock last week, his weapon of choice for shooting himself in the foot is Truth Social, his social media site.

On Tuesday, Trump posted a message that elicited a swift, limited gag order from the judge in his current New York civil fraud trial. It was only the second day. Gag orders are not commonplace. This one may have broken the ice, empowering judges in Trump’s court cases who may feel a need to restrain his increasingly violent speech.

In New York, Trump immediately retreated, deleting the Truth Social post exactly as state court Judge Arthur Engeron demanded.

Backing down is what bullies do when someone stands up to them.

Trump’s specific offense was posting a photograph of the judge’s courtroom clerk and a scurrilous message that named her and made a false accusation about her. Judge Engeron dropped the hammer on Trump at the speed of light.

“Personal attacks on members of my court staff are unacceptable, inappropriate, and I won't tolerate it,” he said. "Consider this a gag order for all parties from posting about any members of my staff.”

Anyone like Trump who has been around courtrooms knows that judges are fiercely protective of their staff. Putting the face of a courtroom staff member on social media with a message seemingly inviting attack was guaranteed to bring down the judge’s wrath.

There's been speculation that Trump, by posting implicit threats in one of his cases, might actually be daring a judge to gag and eventually jail him. Some close to him say that would only help his campaign for a return to the Oval Office. Perhaps he even wants to test the legality of a gag order in a Supreme Court friendly to right-wing First Amendment claims, a court where he thinks he’ll come out a winner.

If so, this was a completely idiotic way to try it. Judges on higher courts — including Supreme Court justices — also have courtroom clerks. No appellate judge is going to reverse Engeron’s order.

Trump’s miscue in this case was completely bonkers for at least two other reasons.

First, when it comes to breaching court rules and norms, judges tend to give parties one or two strikes before imposing sanctions. Trump just used up his first free swing.

Second, Trump is facing an October 16 hearing on a motion by special counsel Jack Smith for a gag order in D.C.; that's where Trump's federal indictment for criminally conspiring to overturn the 2020 election is set to be tried in March.

While what just happened in the New York case is very different from the situation in the federal case, Trump just handed D.C. federal district court Judge Tanya Chutkan a first-ever precedent for limiting Trump's speech.

No judge wants to act in the absence of a prior ruling in the same direction, particularly as to a gag order motion that presents highly sensitive First Amendment issues. Smith’s motion does so because it seeks a broader order than the one imposed by Judge Engeron. That's tricky when the defendant is someone campaigning for public office.

There are many reasons why, even with the new precedent, Smith's request for a gag order in D.C. remains an uphill climb. The trial there is five months away, so Trump's recent media posts may not pose a “substantial danger of imminent harm” to fairness in Smith's prosecution. The Supreme Court has required “imminence” to gag threatening speech that relates to court proceedings.

And in the New York case, the imminent threat of harm was to the equivalent of an innocent bystander — a staff person, not the judge or the prosecutor, both of whom Trump has disparaged in the D.C. case but who are also public figures. 

It’s a safe bet that as the D.C. trial date approaches, Trump will continue, even escalate, his vile attacks on the administration of justice. As former Fox News guest commentator Juan Williams recently explained, “Trump sees threats that can lead to violence as giving him leverage over American institutions accustomed to showing deference to a former president.”

A stalwart federal judge like Tanya Chutkan will not be intimidated; indeed, her judicial spine likely will only be stiffened by threats such as the reported August voicemail message from a Texas woman and MAGA cult member: “If Trump doesn't win, we are coming to kill you.”

Trump should seriously consider a stop on the dog whistles for attacks on the criminal justice system — because they could, before long, land him in a legal emergency room, especially after the injury he just caused himself in New York. In many situations, shooting oneself in the foot results only in a wound that will heal with rest. Repeat it enough times in succession, however, and a person could be crippled forever.

Dennis Aftergut is a former assistant U.S. attorney and former Supreme Court advocate and is currently of counsel to Lawyers Defending American Democracy.