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Gagging a toddler

Good luck with that

U.S. Magistrate Judge Moxila A. Upadhyaya tried back in August to stop Little Donny in his highchair from throwing his spoon. With little success.

This morning, U.S. District Court Judge Tanya Chutkan will have a go at stopping the … ahem … former president of the United States from “attacking potential witnesses, prosecutors and court officials involved in his federal case over election fraud” (Politico):

If Chutkan agrees that Trump’s penchant for public invective should be restrained, it will be his first brush with court-ordered consequences in a criminal case — consequences that, at least in theory, could be backed by the threat of jail time.

And a gag order would immediately raise two questions that could define his bid to retake the White House: Is Trump capable of abiding by a court-ordered restriction on his speech? And what is Chutkan prepared to do if he isn’t?

Restraint is not exactly Donald Trump’s middle name, accustomed as he is his whole life to having sycophants trailing him with their lips firmly affixed to his backside. Former White House aide Cassidy Hutchinson graphically described [52:22] Trump’s alleged response to being told by his Secret Service detail that they would not drive him to the Capitol after his Jan. 6 Ellipse rally. Chutkan will have to be at least as forceful if she expects compliance with any gag order.

If Trump were to violate a potential gag order, enforcement would fall to Chutkan, who has a range of options ranging from gentle warnings to pretrial incarceration. It’s hard to imagine a scenario in which she orders the former president jailed before trial — though his rhetoric may test that premise. Still, short of detention, Chutkan could impose other restrictions, such as limits on his use of social media or access to the internet. Any consequence she were to impose on Trump would become instant grist for Trump’s attacks on the court and the justice system, a dynamic Chutkan is plainly aware of.

The former president is already subject to a narrow gag order in another case: the New York civil fraud trial of Trump and his business empire, which Trump attended earlier this month. During the proceedings, Trump posted a social media attack on Justice Arthur Engoron’s top clerk, including a picture of her and a link to her Instagram account. When Engoron learned of the post, he quickly ordered Trump to refrain from publicly commenting on his aides and staff.

But Engoron’s admonishments have barely slowed Trump’s efforts to publicly brand officers of the courts handling his multiple cases as “Trump haters” and “racist.” On some level, the indicted former president knows the weakness of his legal position in the concurrent criminal cases against him. His strategy now is not just to pound the table but to throw it over like lunch against the wall [58:59]. Trump’s attorneys argue that his being a presidential candidate, a gag order amounts to a freedom of speech violation.

But prosecutors replied with renewed urgency after Trump mounted a series of late-September attacks on Milley and former Vice President Mike Pence, saying he shouldn’t be able to use his political candidacy as a cover for harassing witnesses.

Milley told the House Jan. 6 select committee that he encountered Trump repeatedly during the final frenetic weeks of his administration, saying Trump privately acknowledged he had lost the election despite his public claims to the contrary. Pence became the object of Trump’s last-ditch bid to remain in power on Jan. 6, 2021, and the target of Trump’s fury when he refused to acquiesce.

“[N]o other criminal defendant would be permitted to issue public statements insinuating that a known witness in his case should be executed,” Smith’s team argued. “This defendant should not be, either.”

It may not be Chutkan’s job to defend the courts from charges that that U.S. justice is a hopelessly two-tiered system that treats the poor and non-whites dramatically more harshly than the well-heeled and prominent. But that is the hand she’s been dealt in overseeing the Trump case. The seemingly endless amount of slack Trump has already employed to trash both the courts and potential witnesses against him is visible to the world. Chutkan’s actions (or inaction) will either confirm or further undermine public trust in the institution to which she’s devoted her life, a system already visibly tattered by ethical lapses on the U.S. Supreme Court.

But see Trump’s antics in their broader context. See how his antidemocratic behaviors have undermined faith in democracy not just in public elections but within his own party. Trump is one face of a global authoritarian faction, albeit a minority movement, bent on getting its way or else. Adherents treat popular democracy and the rule of law as optional. Useful when the will of the people leans their way; disposable when it doesn’t. How U.S. justice handles Trump will either slow or accelerate the backsliding.

The only thing American about them beside their boasting is their birth certificates.

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