It’s exasperating to watch the American legal system bend over backward to protect a lawless man committed to its destruction, but here we are.
Last week the D.C. Court of Appeals heard oral arguments on the proper scope of Donald Trump’s gag order in the 2020 election fraud case. Whatever they decide, their opinion will be sorely tested as the trial proceeds through jury selection, evidence and arguments sure to enrage an already incendiary defendant with no impulse control.
Trump, with unparalleled dominance of right-wing media and fact-challenged supporters, is flexing to dismantle the rule of law rather than submit to it. Lacking a viable legal defense to multiple prosecutions for business and tax fraud, hush money campaign fraud, “find-me-eleven-thousand-votes” conspiracy fraud, and “Hang Mike Pence” fake elector fraud, Trump’s brazen strategy is to skip all substance and go straight for the jugular of judicial authority itself.
Anyone paying close attention is getting an extraordinary civics lesson wrought from a perilous chapter in American history.
The legal theory behind gag orders
To the trial bar, a gag order presents a simple intersection between two interests: the rule of law and free speech. Gag orders preserve fair trials by making sure witnesses and jurors are not intimidated or frightened into silence (or perjury). Such orders often run up against the First Amendment, because they limit speech and communication for the duration of a trial, which can last many months.
Trump’s particular case is without precedent because his vitriolic attacks are without precedent. Most defendants are counseled by their defense lawyers to keep quiet; they certainly don’t go out of their way to attack the rule of law or the judge presiding over their case. Not so Trump, who openly encourages political violence and routinely attacks prosecutors, judges, staff, witnesses, and the American legal system itself.
Presiding Judge Arthur Engoron and his staff have now received hundreds of credible threats. Trump’s nonstop references to “Deranged Jack Smith” and “Smith’s team of Thugs,” his public promise that “IF YOU GO AFTER ME, I’M COMING AFTER YOU,” and his proclaimed reverence for putting officials to death alongside petty shoplifters, have infused domestic politics with a sinister threat of violence, a threat now deemed acceptable to a substantial percentage of Republican voters.
Using plausible deniability as a weapon
At oral argument on the gag order, Trump’s lawyers advanced a free-for-all view, one that would allow Trump to walk a tightrope adjacent to the line of inciting violence, just like his “fight like hell, or you’re not going to have a country anymore” J6 speech on the ellipse. As his theory seems to go, Trump could obliquely encourage MAGA to burn down a witness’ house while he sleeps, without using those exact words. If the house remains un-charred the next morning, Trump’s speech is protected under the First Amendment because 1. He didn’t explicitly mention arson; and 2. The possibility of future violence is too remote. As the prosecution put it, “[Trump]… well knows that by publicly targeting perceived adversaries with inflammatory language, he can maintain a patina of plausible deniability while ensuring the desired results.”
What passes for substance on Fox is no more than a platitude
Trump’s relentless attacks against DOJ/Jack Smith “thugs” fall under the rubric of political speech because Smith was appointed Special Counsel by an Attorney General serving under Biden’s presidency. No factual nexus or evidence linking Smith’s decisions to Biden are needed; Trump’s right-wing echo chamber feeds on insinuating headlines alone.
Trump’s alleged political speech is clearly intended to delegitimize the legal system itself, as he campaigns on a promise to weaponize the rule of law and seek revenge. Judge Patricia Millett, who served on the gag order appeals panel, told defense counsel that labeling Trump’s attacks as “core political speech” begs the question whether it is both political speech and speech “aimed at derailing or corrupting the criminal justice process.”
In other words, Trump counsels’ constant refrain of “core political speech protected by the First Amendment” is circular and empty, like using a word in a sentence to define what that word means.
For now, the gag order remains on hold. Whatever the outcome on appeal, the tension between Trump’s free speech and the rule of law will likely be settled by the Supreme Court.
Weaponizing the First Amendment in unprecedented ways, Trump has transformed a venerated legal shield into a lethal sword that threatens democracy itself. The painful civics lesson from this saga, likely to get worse before it gets better, is that the U.S. is just as vulnerable, just as susceptible as any other nation in the world, to the evil march of fascism. In that regard, Trump is teaching us a valuable lesson: the U.S. is not exceptional after all.
Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, and Howey Politics. She and her wife split their time between South Florida and Chicago. Follow her on substack.