Gonzaga law professor says Monday’s gag order against Trump is ‘new legal ground’

The historic limited gag order a judge placed on former President Donald Trump Monday is “new legal ground,” an Inland Northwest law professor said, with some details still uncertain.

In a phone interview, longtime attorney and Gonzaga University law professor Ann Murphy said she was a little surprised to hear about the gag order that bans Trump from launching a “pretrial smear campaign” attacking witnesses, prosecutors or court staff in the federal trial over his alleged attempts to overthrow the 2020 presidential election.

“It plays into Trump’s hand very well,” Murphy said. “In that he is portraying it as he can’t talk anymore. Which is far from the truth.”

Judge Tanya Chutkan issued the order due to safety concerns, Murphy added, despite likely trying to avoid issuing such an order. Monday’s ruling was the first time in history that a U.S. president has been the recipient of a gag order.

The gag order is very narrow. It left Trump free to argue that his prosecution is politically motivated. It left him free to continue to verbally criticize the Justice Department as a whole, as well as President Joe Biden. Chutkan did not include herself in a list of names protected from disparaging remarks.

Murphy said the former president just can’t specifically name some people.

The order bans the former president from verbally targeting individual members of the judge’s staff, individual prosecutors and witnesses, Murphy said, “because there’s a danger that his supporters will kill them.”

When Chutkan received a death threat from a Trump supporter following one of his firebrand social media posts, she grew concerned for the safety of her staff and court employees.

“It’s not so much what Trump is saying,” Murphy said. “It’s the effect of what he says on his supporters.”

In 2020, elections poll workers in Atlanta, Georgia, reported they faced harassment and threats that forced some of them to leave their jobs following claims by Trump that the election was stolen. Murphy said the people protected by Monday’s gag order faced a similar danger as the Georgia poll workers.

Under the First Amendment of the U.S. Constitution, anyone can say whatever they want, Murphy said, but there is legal room for consequences. Chutkan did not specify what consequences Trump might face if he violates the gag order.

The judge said she would consider “sanctions” if she observes any violations. She did not elaborate on those sanctions Monday, although she indicated she would issue a written order with more information.

Under the law, violating a court order means a defendant is in contempt of court. Sometimes that looks like fines, and other times it means jail time.

Gag orders happen all the time in courts, Murphy said, but Trump is an unusual defendant because he is the former president.

Murphy said she’d probably do the same thing if she were in Chutkan’s shoes, adding that she thought it was a smart move for the judge to exclude her own name in the list protected by the gag order. Chutkan has a security detail, the law professor said, making her less vulnerable to threats than her staff or other court employees might be.

“It’s really just protecting people,” Murphy said. “His supporters have shown themselves to be violent. All of this is so interesting, because it’s new legal ground. We haven’t been here before.”