If you’ve always thought that federal judges ought to determine what presidential candidates can and can’t say about political matters, you should love Judge Tanya Chutkan’s partial gag order against Donald Trump.
Chutkan is hearing the Jan. 6 case against Trump brought by Special Counsel Jack Smith and has decided to partially muzzle Trump with an order that is nonsensical and possibly unconstitutional.
It stipulates that Trump can still criticize the Biden administration and the Department of Justice and the “campaign platforms and policies” of his GOP rivals, including former Vice President Mike Pence. And Trump can continue to say he’s “innocent of the charges against him.”
Chutkan has forbidden Trump from statements targeting the special counsel, Jack Smith, who brought the charges against him, or “any reasonably foreseeable witness or the substance of their testimony.”
There’s no doubt that Trump’s commentary about the case has been lurid, at best. He shouldn’t call Jack Smith “deranged” or a “thug,” but this, alas, is how the former president expresses himself. And he has the right to comment on an inherently political case with massive political implications.
It’s not as though Trump is charged with a random personal offense. The alleged crimes have to do with his conduct after the 2020 election. Everything about the case is a matter of hot political dispute.
It is absurd to try to ban Trump from attacking the special counsel when he is the Justice Department’s instrument for bringing the charges. Besides, such prosecutors are always criticized by their targets. If, for some reason, attacks on Independent Counsel Kenneth Starr had been ruled out of bounds during the Whitewater and Monica Lewinsky investigations, Bill Clinton’s defenders would have been rendered practically mute.
As for the potential witnesses, one of them is Mike Pence, who is running against Trump for president. It is mighty generous of Judge Chutkan to allow Trump to address Pence’s policy plans. The chief political dispute between the two candidates, though, has to do with Jan. 6 and their clashing interpretations of who was right on that day.
Pence discusses this on the campaign trail, and Trump should be able to offer his rival interpretation. Welcome to life in a free society.
Chutkan wants to shut up Trump about questions that will be absolutely central to the 2024 campaign if he’s the Republican nominee. Joe Biden will run, to a large extent, on Jan. 6, and Trump will run, to a large extent, on the justice system being manipulated against him by the likes of Jack Smith.
Chutkan may think she has no choice. But the decision to charge Trump in this case was discretionary; the decision to schedule the trial in the midst of a presidential election was discretionary; and her unwillingness to see the obvious flaws in her order is discretionary, too.
A federal judge shouldn’t be the one setting the rules of the road for a presidential election.
Rich Lowry is editor in chief of the National Review
