Campaign, court gag order collide with Trump attack on likely witness

On Thursday, former attorney general William P. Barr made some less-than-flattering comments about Donald Trump. Twice over the weekend, the former president snarled back — first insulting Barr’s appearance in a campaign speech, then calling Barr “gutless” and “weak” on social media.

But one of those comments came just after a court order barring Trump from going after witnesses — such as Barr — who could testify at trial about his attempts to undo the 2020 election results.

Minutes before the Truth Social post, U.S. District Court Judge Tanya S. Chutkan had reimposed a gag order barring Trump from comments that “target … any reasonably foreseeable witness” in the federal case in D.C. charging him with illegal interference in the 2020 election.

When he posted about Barr, Trump had not yet been told by his attorneys that the gag order was in effect and was not intending to violate it, according to a campaign aide. A few minutes after the Barr insult, Trump wrote that he had just learned the gag order was reinstated after a week-long pause related to his planned appeal. He added half a dozen posts assailing President Biden, the Department of Justice, the indictment against him and Chutkan herself — comments that do not violate the order.

For now, he is toeing the line she set. But his ability to conform to the rules of the gag order, and Chutkan’s ability to police him if he doesn’t, will be a constant question for the next five months as he campaigns and prepares for the March trial in D.C.

Trump argues that he has been unconstitutionally muzzled as his political foes serve dual roles as potential witnesses against him in court and public figures opining on the 2024 race. In New York State Court, where he is facing civil fraud charges, Trump has been repeatedly fined for disparaging a court clerk, even getting called up last week to briefly testify about a comment he made outside the courtroom about the judge in that case.

“The American people have the right to hear from President Trump, the leading candidate in the 2024 Presidential election, and no court or prosecutor can be allowed to commit election interference,” Trump campaign spokesman Steven Cheung said. Cheung said Trump is “Constitutionally entitled to speak the truth to all Americans” and that “even the ACLU agrees that it has to go.” The free-speech group often opposed the Trump administration in court.

The most obvious conflict between the 2024 campaign and Chutkan’s order was embodied by former vice president Mike Pence — a key witness to the events of Jan. 6 who made his decision not to join Trump’s anti-democratic schemes, part of his campaign pitch. That conflict no longer exists now that Pence has suspended his campaign, making him akin to any other trial witness.

But several possible witness are also now prominent critics of Trump, including Barr, former joint chiefs chairman Gen. Mark A. Milley, and former White House aide Cassidy Hutchinson.

Staff for the former president say he is trying to follow both orders but has trouble reining himself in. It is that lack of discipline Barr commented on last week at the University of Chicago’s Institute of Politics. In the exchange that appeared to inspire Trump’s anger, Barr had actually been defending his former boss’s calling Hezbollah, which has been designated a terrorist group by the United States, “very smart,” suggesting the former president misspoke because “his verbal skills are limited.”

“The adjectives, they’re unfamiliar to him, and they sort of spill out and he goes too far,” Barr said. He went on to call Trump “a very petty man” with “a very fragile ego” who would probably cause “chaos” in a second term.

Trump and his attorneys say it is unfair for the former president to be expected to leave such criticism unanswered and impossible for him to campaign without such commentary because he has made the 2020 election and the events of Jan. 6 central to his reelection pitch.

Barr and other witnesses “appear to relish the notoriety they have gained through their proximity to Trump” and “give as good as they get,” his attorney John Lauro argued in court.

Chutkan has been unmoved by those arguments, saying that as a criminal defendant Trump has to abide by restrictions his critics do not. She said that allowing Trump’s to engage in verbal attacks on the Justice Department, President Biden and herself meant his campaign message was not unduly muted by the order.

The question will soon be before the U.S. Court of Appeals for the D.C. Circuit. The challenge could go to the U.S. Supreme Court, which has never ruled on the constitutionality of gag orders against criminal defendants.

“I don’t know how they would come out on this,” said Paul Hoffman, who litigated a gag order in the civil trial against O.J. Simpson as the legal director for the American Civil Liberties Union Foundation of Southern California. “I think the order does raise pretty substantial constitutional questions, particularly in the context of someone that is running for president.”

The national ACLU has weighed in on Trump’s behalf, agreeing that the order is too broad in covering expected testimony on Jan. 6 and the 2020 election — “key points in the ongoing 2024 presidential campaign” — and too vague about what it means to “target” a witness.

Chutkan said in her ruling Sunday that she can address the vagueness issue by looking at “the substance and context” of alleged violations. And she noted that Trump’s own messages, which complied with the order when he believed it to be in effect and did not when he didn’t, showed her ruling was “straightforwardly understood.” The breadth of the order, she said, was necessary given when Trump “singled out certain people in public statements in the past” it “led to them being threatened and harassed.”

The ACLU said that concern was valid but that “the First Amendment does not authorize the Court to impose a judicial gag order on Defendant merely because third parties who hear his public statements may behave badly of their own accord.”

Hoffman said he thought the ACLU’s argument went “too far,” and that Chutkan can rely “on a track record where there have been violent episodes in response to Trump” comments about individuals. But he said an appellate court might well say the attempt to regulate that conduct needs to be less sweeping.

“Trump’s megaphone creates a whole different kind of dynamic,” he said. “That is what the judge is wrestling with.”