Judges Need to Make It Clear to Trump That Their Gag Orders Aren’t Optional

The judges overseeing former President Donald J. Trump’s civil and criminal trials need to send a message to him and his supporters that the gag orders restricting Trump from spewing dangerous invective actually have teeth.

New York state Judge Arthur Engoron has now found Trump violated the court’s gag order twice in less than a week, but has thus far only punished Trump with two fines—the first one was $5,000 and the second one was $10,000—that cannot even be charitably called “slaps on the wrist” for someone with Trump’s wealth.

Make no mistake, Judge Engoron was pissed off at Trump for again trying to attack Engoron’s law clerk. Trump’s previous violation involved failing to remove an image of the clerk from his campaign website that falsely claimed the clerk was a “girlfriend” of Sen. Chuck Schumer (D-NY). Trump’s lawyers excused it as an “oversight.”

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The second violation occurred yesterday afternoon when Trump told reporters that Engoron was partisan and “with a person who’s very partisan sitting alongside him. Perhaps even much more partisan than he is.”

This remark resulted in the judge ordering Trump to take the witness stand and explain who he was talking about. Trump testified, under oath, that he was referencing Michael Cohen—his former lawyer who had been testifying over the course of the past day—not the clerk.

Engoron then made a finding that he did not find Trump credible and doubled the previous fine adding, “Don’t do it again, or it will be worse.”

With all due respect to Judge Engoron, I can’t help but wonder how much worse for the next offense—maybe $20,000? At that rate, the amount of money Trump is likely to make fundraising off of Engoron’s sanctions will end up dwarfing the sanctions themselves.

In the federal criminal case in Washington, D.C., Judge Tanya S. Chutkan also imposed a gag order on Trump in which she forbade him from targeting the special counsel staff—including Special Counsel Jack Smith—court staff and foreseeable witnesses or the substance of their testimony.

Chutkan’s order was a model of legal clarity and an admirable stand against the authoritarian leanings of Trump and his followers. But rather than letting the order stand while Trump appealed it, Chutkan stayed it to allow Trump time to appeal it.

Yesterday, Special Counsel Jack Smith filed pleadings arguing Chutkan should lift her stay because the stay has given Trump carte blanche to repeatedly violate her order. Smith’s team pointed out that Trump has been calling witnesses who cooperated “weaklings” and “cowards,” and argued: “The defendant has capitalized on the court’s administrative stay to, among other prejudicial conduct, send an unmistakable and threatening message to a foreseeable witness in this case.” Smith’s team added, “Unless the court lifts the administrative stay, the defendant will not stop his harmful and prejudicial attacks.”

Again, with all due respect to Judge Chutkan, did she really think Trump was going to quiet down while his lawyers appealed her ruling? The effect of her self-imposed stay allowed Trump to continue to do the very damage she sought to end—damage that cannot be undone.

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While both judges may be trying to be judicious in their actions, their caution flies in the face of the proven danger caused by Trump’s words. As pointed out by Jeffrey Toobin—author of Homegrown—Timothy McVeigh and the Rise of Right-Wing Extremism—ample evidence exists that Trump’s invective has led to violence, even when it falls short of criminal incitement to violence. The Jan. 6 attack on the U.S. Capitol is an obvious example of vicious violence which Trump inspired.

In 2020, an ABC News report “identified at least 54 criminal cases in which Trump was invoked in direct connection with violent acts, threats of violence or allegations of assault.” By contrast, ABC News found no criminal cases where an act of violence or threat was made in the name of President Barack Obama or President George W. Bush.

Election workers, Ruby Freeman and Shaye Moss, memorably testified before Congress about the threats and dangers they suffer to this day due to Trump’s lies and those of his enablers like Rudy Giuliani.

During Trump’s presidency, his racialization of the COVID-19 pandemic by calling it “kung flu” and the “China virus” was linked with a rise in anti-Asian content on Twitter (now known as “X”) that included expletives directed against Asians, as well as hashtags advocating bombing Chinese cities and killing Chinese people.

A 2022 Brookings Institution article cited research showing one in five Americans believe that Asian Americans are at least partially responsible for COVID, and noted the increase of Asian Americans being spat upon and told to “go back to your country.” According to one study, the increase of harassment and violence against Asians, including the attacks and murders of elderly Asian Americans, increased from 2021 to 2022 by 339 percent.

Words do matter.

Neither Judge Engoron nor Judge Chutkan are likely intimidated by Trump or his authoritarian-leaning followers. Rather, they both probably strive to show deference to the office that Trump once held and the system of government that elected him. They are institutionalists seeking to protect the integrity of the institution (the justice system) by taking care to appear prudent in their reactions, perhaps believing that cautious action will ensure public confidence in their decisions.

Judge Fines Trump, Threatens Prison Time for ‘Blatantly’ Violating Gag Order

But in so doing they are failing to trust the system as a whole and overestimate their own importance or perhaps sense how much the public overestimates their roles. Like the old memes of Robert Mueller as a warrior who would vanquish Trump and the new ones of a steely-eyed Jack Smith who has taken over that role, these are inaccurate images of justice. True justice is not delivered by lone wolf prosecutor warriors or crusading judges, but by a system of dedicated public servants.

Chutkan and Engoron should trust this system to oversee their decisions—lawyers will challenge them and appeals courts will review them. As judges they need to make the punishment for violating their orders significant enough to have a real deterrent effect. That means financial fines in amounts that will matter to someone as rich as Trump.

And if jail is required to make Trump respect the law then so be it. Jail should be a logistics problem for the U.S. Secret Service, not a factor to be weighed in dispensing justice.

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