What Trump can say and can’t say under a gag order in his federal 2020 election interference case

Date:

BY ALANNA DURKIN RICHER AND ERIC TUCKER

WASHINGTON (AP) — A gag order in Donald Trump’s election interference case in Washington is back in place, restricting the former president’s inflammatory rhetoric as he prepares for trial and campaigns to return to the White House in 2024.

Trump’s lawyers are vowing to fight the order in higher courts, setting up a legal battle over what restrictions can be placed on the speech of a defendant who is also running for America’s highest public office.

Here’s a look at what’s allowed and what’s not under the gag order and what’s expected next:

WHAT DOES THE GAG ORDER PROHIBIT?

The order from U.S. District Judge Tanya Chutkan bars Trump and anyone else involved in the case from making public statements targeting prosecutors, court staff or “any reasonably foreseeable witness.” The order does not name potential witnesses who are off-limits, but many of them are obvious, as it was publicly reported they testified before the grand jury that investigated the case.

For example, a recent post about Trump’s former chief of staff Mark Meadows, a likely witness, “would almost certainly violate the Order under any reasonable definition of ‘targeting,’” the judge wrote. That post was in response to an ABC story that said Trump’s chief of staff was given immunity in the case and testified before a grand jury. Trump suggested that those who give statements to prosecutors are “weaklings and cowards,” adding, “I don’t think that Mark Meadows is one of them but who really knows?”

The judge wrote that the insinuation that Meadows would be a coward if he provides testimony that could hurt Trump “could readily be interpreted as an attempt to influence or prevent the witness’s participation in this case.”

Trump, a Republican, also went after his former Attorney General Bill Barr, another likely witness, in a social media post late Sunday, referring to him with adjectives such as “Dumb, Weak, Slow Moving, Lethargic, Gutless.” The post may have violated the order, but it’s unclear if Trump knew it had been reimposed at the time. At the time of that post, only a brief and general notation indicating the restrictions’ reinstatement was made on the online case docket. The order itself was not posted online until several hours later.

SO IS THERE ANYTHING TRUMP CAN SAY ABOUT THE CASE?

Yes, plenty.

The gag order does not prohibit Trump from airing general complaints, even incendiary ones, about the case against him. He’s free, for instance, to disparage the Biden administration as “corrupt” and to claim, as he does repeatedly, that he’s a victim of a politically motivated prosecution.

In fact, the judge explicitly noted that one social media post he made after she’d entered her order would not have run afoul of her restrictions. In that one, he referenced the “Election Rigging Biden Administration” and complained prosecutors had not gone after the “riggers” of the 2020 election — even though there’s no evidence to suggest the election he lost to Democrat Joe Biden was rigged. He also said that “massive information and 100% evidence will be made available during the Corrupt Trials started by our Political Opponent.”

“This statement asserts that Defendant is innocent, that his prosecution is politically motivated, and that the Biden administration is corrupt. It does not violate the Order’s prohibition of ‘targeting’ certain individuals; in fact, the Order expressly permits such assertions,” the judge wrote.

Chutkan, who was appointed by President Barack Obama, also didn’t include herself among those off-limits under the order. That means Trump’s criticism of her — including a social media post late Sunday in which he called her a “Biased, Trump Hating Judge” — is still allowed.

WHAT HAVE TRUMP’S LAWYERS SAID?

They have attacked the order as unconstitutional and asserted that it infringes not only on Trump’s free speech rights but also on his ability to campaign for president.

“No court in American history has imposed a gag order on a criminal defendant who is campaigning for public office — least of all, on the leading candidate for President of the United States,” they wrote in a motion last week urging the judge to put the restrictions on hold.

The Trump team has also criticized the order as overly broad and vague and said that prosecutors have failed to identify any witness who claims to have felt threatened or harassed by any of Trump’s comments.

After prosecutors asked the judge to lift her hold on the order and reinstate it, citing comments Trump had made about the reported grand jury testimony of Meadows, defense lawyers cited the episode as why the restrictions were “unworkable.” Trump, they said, needed to be able to respond to media leaks, including what they said were “false claims about his interactions with his former chief of staff.”

“It is not as though President Trump started the recent national discussion on Meadows. The media did that itself, presumably prompted by a source other than President Trump,” they wrote.

HOW MIGHT THE GAG ORDER BE ENFORCED?

That’s not entirely clear.

One option could be a monetary fine on Trump, as occurred recently in a civil business fraud trial in New York. The judge in that case hit him last week with a $10,000 fine for violating an earlier gag order after determining that he had made inflammatory remarks about the judge’s clerk.

In the Washington case, Chutkan could also theoretically seek to jail Trump if she concludes that he willingly flouted her restrictions and that there’s no other way to keep him in line. But that would seem a radical step since jailing a former president and current candidate would create an obvious logistical headache and potentially rile up supporters who believe his claims that he is being prosecuted for political purposes.

Notably, in reinstating the gag order, Chutkan seemed to suggest she was looking to avoid that. She denied for now a prosecution request to make compliance with the gag order a condition of Trump’s release pending trial, writing, “Even assuming that request is procedurally proper, the court concludes that granting it is not necessary to effectively enforce the Order at this time.”

Another option could be moving up the trial to earlier than its currently scheduled start date of March 4, 2024, though that would undoubtedly draw complaints from Trump and his lawyers, who have already argued unsuccessfully that they need much more time to prepare.

WHAT’S NEXT?

Trump’s lawyers have appealed to the U.S. Court of Appeals for the D.C. Circuit and have indicated they will ask that court to lift the gag order while his appeals play out. A Trump attorney didn’t respond to requests for comment on Sunday or Monday.

The D.C. Circuit could ultimately uphold the gag order or find that the restrictions imposed by Chutkan went too far. Either way, the issue is likely to be appealed to the U.S. Supreme Court, although there’s no guarantee the justices would take up the matter.

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