Trump appears to prefer menacing his foes over clearing his name
A closer look at the fights over gag orders reveals the danger of delaying trials.
Normally, a criminal defendant wants a speedy trial and swift exoneration. But not felon and former president Donald Trump. He employs every trick in the book to delay his trial dates while complaining that, in effect, he should be allowed to keep threatening witnesses, jurors and court personnel. A closer look at the fights over gag orders reveals the danger of delaying trials and makes clear the degree to which Trump poses a current threat to fellow Americans.
Trump desperately tried to delay his Manhattan hush money case involving the falsifying of business records. He also repeatedly maneuvered to push off a trial date for his Jan. 6 trial on charges of trying to subvert the 2020 election. Yet he has also rebelled against restraining orders — imposed by trial judges Justice Juan Merchan in Manhattan and District Court Judge Tanya S. Chutkan in the Jan. 6 federal case — to protect the targets of his threats from real danger. He wails that the gag orders violate his First Amendment rights and interfere with his presidential campaign.
In other words, Trump seems uninterested in justice quickly obtained that might quickly exonerate him and free him from the gag orders. Instead, he revels in inciting the mob against his legal tormentors.
What the prosecutions’ papers and the judges’ rulings in these cases reveal is the stunning impact of Trump’s incitement of his cult followers — bomb hoaxes, doxing, death threats. Trump’s menacing conduct has necessitated round-the-clock security for judges and prosecutors and extraordinary measures to conceal jurors’ identities.
This is the handiwork of someone running for president — and it speaks to his ability to stir dangerous passions. Rather than being chastened by the violence that resulted from his incendiary rhetoric on Jan. 6, 2021, Trump continues issuing diatribes with the potential to goad supporters to attack his perceived enemies.
A federal appeals court in Washington, for example, in ruling last winter on Trump’s appeal of Chutkan’s gag order, noted his “documented pattern of speech and its demonstrated real-time, real-world consequences pose a significant and imminent threat to the functioning of the criminal trial process.” The court kept in place orders preventing a tried and true tactic, namely “laundering communications concerning witnesses and addressing their potential trial participation through social media postings or other public comments.”
Campaigning does not give Trump free license to endanger others by “dressing up messages to witnesses in political-speech garb.” The court refused to enable Trump’s scheme:
Delaying the trial date until after the election, as Mr. Trump proposes, would be counterproductive, create perverse incentives, and unreasonably burden the judicial process. Allowing prejudicial statements to go unchecked for an even longer pretrial period would simply compound the problem. Delay would not bring back witnesses who have been stifled by Mr. Trump’s commentary and the reactions of those whom he says “listen to [him] like no one else.” In addition, postponing trial would incentivize criminal defendants to engage in harmful speech as a means of delaying their prosecution.
Similarly, in the aftermath of the New York hush money case, Trump wants the entire gag order lifted, apparently so that he can continue to harass jurors, trial personnel and their families. Last week, the response from District Attorney Alvin Bragg’s office explained: “Thus, the relevant question is not whether the orders prevent defendant from speaking freely about this case — they never have — but instead whether there is reason to preserve the orders’ narrowly tailored protections on specific participants in this criminal proceeding.”
The district attorney argued that certainly the protection for jurors must continue as Trump’s minions attempt to reveal their identities and addresses. (“This Court already recognized a broader interest in shielding jurors from ‘physical injury or harassment’ when it issued a protective order prohibiting disclosure of juror names and addresses.”) Likewise, the district attorney argued that staff, court personnel and their family members also still need protection; he did agree to lift the order regarding witnesses since their testimony is complete.
What does all this reveal about Trump and his assaults on the judicial system?
First, the gag orders may have had a welcome effect for Trump, who often seems afraid of speaking when the stakes are high. In the hush money case, after Trump claimed that the gag order would prevent him from testifying, Merchan issued a rare rebuttal from the bench. Trump — who didn’t testify, in the end — even seemed to also suggest that the order could impede his ability to address his supporters or participate in the presidential debates. By simultaneously seeking to have these orders lifted and exaggerating their scope, Trump once more plays the victim and encourages his followers to join his crusade for revenge.
Second, the D.C. gag order in the Jan. 6 case might have been lifted, in whole or in part, had Trump agreed to comply with the original trial schedule. But plainly, as he found out in New York, Trump has much to lose in courtrooms. His defenses are flimsy and the facts against him strong. When ordinary jurors (as in two E. Jean Carroll civil cases for defamation, the New York criminal case) evaluate his conduct, he risks losing — badly. So delaying trials, even with gag orders in place, suits his purposes.
Third, Trump has repeatedly argued that his campaign necessitates that he be allowed to engage in speech prohibited by court orders (making threatening remarks about judges’ family members, jurors, etc.). What more evidence is needed of Trump’s desire to build his campaign around an atmosphere of violence, intimidation and vengeance? He needs to make boogeymen of judges, prosecutors and others because, without them, he loses a critical source of imagined persecution. Right now, Trump needs all the demons he can conjure up.
Thus every week is shark week.
Opinion by Jennifer Rubin
Jennifer Rubin writes reported opinion for The Washington Post. She is the author of “Resistance: How Women Saved Democracy from Donald Trump” and is host of the podcast Jen Rubin's "Green Room."
