Judge’s Order Gagging Trump Was a Major Moment: ‘It Breaks The Dam’

From a picture of himself holding a baseball bat next to a New York prosecutor to his statement “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Donald Trump has met his post-presidential legal challenges with increasingly incendiary posts on social media. 

And the former president has faced few serious repercussions or reprimands from the legal system.

Until Tuesday.

New York State Supreme Court Justice Arthur Engoron in a surprise move Tuesday issued an extraordinary gag order from the bench after the former president attacked his law clerk by name and shared her image on social media.

“Personal attacks on members on my court staff are unacceptable, inappropriate, and I won't tolerate it [in my courtroom],” said Engoron, who is presiding over a $250 million civil fraud trial against Trump and his business associates. He added later to "consider this a gag order for all parties from posting about any members of my staff."

Many have tried to silence Trump through the years. He’s faced bankruptcy, lost elections and even got booted from Twitter. Legal observers said it was only a matter of time before Trump’s behavior caused a judge to utter the words “gag order.” 

"Trump deserves to be gagged in every court proceeding," said Ty Cobb, a former Trump White House lawyer. "No one is above the law and he has gotten away with so much."

What happens next in New York and beyond is unclear. Engoron wasn’t specific about the penalties awaiting anyone who violated his mandate, though they typically can include fines and even incarceration. 

A similar set of restrictions could be headed Trump’s way in Washington, D.C., where a federal judge has scheduled a hearing for Oct. 16 to consider Special Counsel Jack Smith’s request to impose a narrow gag order on the former president to ensure he doesn’t intimidate any government witnesses ahead of his criminal trial next spring. 

Some Trump advisors are skeptical that judges will go very far to enforce a gag order.

“The Secret Service is never going to let the court put a former president and presidential candidate in jail, but I guess stranger things have happened," said one longtime Trump advisor, who asked for anonymity to speak openly. "What are they going to do? Put him on house arrest? Make him wear an ankle monitor?”

Shortly after Engoron’s order came out, Trump’s social network blasted out an advertisement reminding its users that the former president has been “frequently using Truth Social to comment on the civil fraud case being tried against him in New York.”

“Keep checking Truth Social for more breaking news and content!” the Truth Social team wrote.

A Trump spokesman did not respond on the record to a request for comment.

‘Potential death and destruction’

Prosecutors and court officials have expressed growing concern about the former president’s social media posts, typically shared on his Truth Social platform where he has 6.4 million followers.

After the former president attacked New York District Attorney Alvin Bragg, the Manhattan prosecutor pursuing 34 felony counts against Trump, the DA was mailed a death threat in an envelope with white powder.

The day after Trump’s “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” post, U.S. District Judge Tanya Chutkan allegedly received a death threat via voicemail from a Texas woman.

In a court filing on Friday, prosecutors in the office of Special Counsel Jack Smith – who is leading federal prosecutions of Trump in D.C. on election-obstruction charges and in the Florida classified documents case – cited social media activity by Trump including a post about Chairman of the Joint Chiefs of Staff Mark Milley's call to China after the Jan. 6, 2021, insurrection at the U.S. Capitol being “an act so egregious that, in times gone by, the punishment would have been DEATH!”

"No other criminal defendant would be permitted to issue public statements insinuating that a known witness in his case should be executed; this defendant should not be, either," Smith's prosecutors wrote in their brief.

Trump and his attorneys have noted that he is the leading candidate for the GOP’s presidential nomination in the midst of a combative campaign, and argued any gag order would violate his First Amendment rights.

In the D.C., case, prosecutors are requesting a “narrow” gag order aimed at stopping Trump from attacking government witnesses in his election-obstruction case. Chutkan is expected to rule on Smith's motion after the Oct. 16 hearing.

In the New York “hush money” case, prosecutors likewise raised concerns about Trump’s violent rhetoric. At Trump’s arraignment on the New York charges in April, Manhattan prosecutor Christopher Conroy raised alarm at Trump’s “recent public statements threatening our city, our justice system, our courts, and our office.”

“[Trump’s] public statements have, among other things, threatened ‘potential death and destruction’, and that is a quote, and ‘World War III’, another quote, if these charges were brought and he was indicted,” Conroy said. “We have significant concern about the potential danger this kind of rhetoric poses to our city, to potential jurors and witnesses, and to the judicial process.”

Ultimately, New York Supreme Court Judge Juan Merchan placed Trump under a standard protective order in that case which limits his discussion of evidence.

‘A merited, discrete order’

Legal experts on Tuesday praised Engoron for attempting to put the brakes on Trump’s provocations.

"The order only bars attacks on court personnel and is so narrow that it doesn’t raise serious First Amendment issues," said William Jeffress, a longtime D.C.-based defense attorney who represented Richard Nixon after his presidency. Jeffress added: "But it is significant in once more calling attention to Trump’s unhinged and disgusting habit of personally attacking anyone who stands in his way regardless of the truth."

Randall Samborn, a former Justice Department spokesman for two past special counsel investigations, noted the order's limited scope.

"But if either Judge Engoron or Judge Chutkan imposes a broader order, then the former president could find his ability to communicate to his base and in the court of public opinion seriously curtailed or he could face even harsher consequences," he said. "It certainly appears this New York civil case is ratcheting up the pressure on Donald Trump.”

"It is a timely ruling and one which might have a domino effect on the other matters," said David Weinstein, a South Florida-based defense attorney and former federal prosecutor, adding that the order "certainly sends a strong message that there is a line between free speech and inciteful speech, which is at the heart of two of the four criminal cases pending against Trump."

John Q. Barrett, a former associate counsel who worked under independent counsel Lawrence Walsh during the Reagan-era investigation into secret U.S. arms sales to Iran, called Egorgen's move "a merited, discrete order."

"If Trump violates it, that will be clear contempt, for which the judge should impose sanctions," Barrett said.

Patrick Cotter, a former assistant U.S. attorney, compared Engoron’s Tuesday order to the famous incident where attorney Robert Welch confronted Senator Joseph McCarthy for attacking a member of his staff, asking the senator: “Have you no sense of decency, sir?”

“But the judge here was less dramatic than Welch and perhaps the supporters of the ex-president have no problem with Trump’s recklessness and cruelty to innocent persons; he has done it so many times before,” Cotter said.

Few experts and observers expressed confidence that Trump will change his ways.

Presidential historian Shannon Bow O'Brien from the University of Texas-Austin predicted Trump "will likely violate" the judge's gag order and then "use it as a platform [to] see how much vitriol he can spin up."

Whether he violates Engoron’s order or not, experts said, the moment a judge tried to gag Donald Trump was a significant one.

"It is actually a bigger deal than it appears because it breaks the dam," said Paul Rosenzweig, the founder of Red Branch Consulting and ex-deputy assistant secretary for policy at the Department of Homeland Security. "We can now expect Chutkan to issue one as well and that will have significant collateral impact, both on Trump in public and in the courts when he, inevitably, violates the order."

Marc Caputo contributed to this story.