OPINION: This article may contain commentary which reflects the author’s opinion.
Two federal judges have ordered former President Donald Trump to limit what he says about the cases against him, but they may be about to find out how powerless they are to enforce them.
An array of legal experts believe that the First Amendment, combined with the fact that Trump’s running for president and is the clear frontrunner for his party, could make those judge’s orders null and void, the Daily Caller reported.
The outlet noted:
Fulton County Superior Court Judge Scott McAfee issued an order on August 21 prohibiting the former president from engaging in any acts of “intimidation,” whether through direct or indirect means, aimed at witnesses and other parties associated with the Georgia case, according to a court document. The order includes Trump’s social media posts and even his reposts of other people’s content. Moreover, Trump cannot communicate directly about the facts of the case with any co-defendant except through legal counsel.
Additionally, U.S. District Judge Tanya Chutkan issued a protective order on August 11 to restrict Trump’s speech about “sensitive materials” in the Washington, D.C. indictment for his conduct related to the 2020 election. “Sensitive materials” often include witness interviews and recordings of conversations.
“It will take an awful lot for Judge Chutkan to jail Trump, and you can bet he will push the line as far as he can,” University of Michigan law professor Barbara McQuade told the Washington Post. “It is a win-win situation for him. If he is not gagged and jailed, he can disparage prosecutors and witnesses with impunity. If he is jailed, he can portray himself as a victim of persecution.”
“The fact that he’s a presidential candidate absolutely gives him enhanced First Amendment protections,” Article III Project founder Mike Davis added in an interview with the Daily Caller. “This is core political speech.”
”While no judge is spoiling for a fight with Trump, judges cannot let defendants flout orders or the justice system is compromised,” Joan Meyer, partner at the law firm Thompson Hine LLP, told the outlet. “Trump is not above the law, and if he tries to test that too aggressively, he may find himself in violation.”
But that said, Trump’s unusual circumstance — he’s running for president as a former president — means he will have a lot of leeway to speak, according to the founding professor of Nova Southeastern University Law Center Bruce Rogow.
“Trump, of course, is in a unique situation, and he can, as a candidate, rail against the prosecution generally, and he will not be sanctioned,” Rogow told the outlet.
“Indeed, the prosecution is an important part of his political performance as a candidate, so while most defendants would be careful not to antagonize the court, the prosecutors, he will find that useful,” he said.
“Indeed, the prosecution is an important part of his political performance as a candidate, so while most defendants would be careful not to antagonize the court, the prosecutors, he will find that useful,” he added.
The 45th president “has the best imaginable First Amendment case for talking about the charges against him, the evidence against him, the witnesses against him,” Kenneth White, a former federal prosecutor, told The Washington Post.
Meyer told the Daily Caller the fact that one of the witnesses against him, his vice president, Mike Pence, is also running against him for the 2024 nomination, also complicates enforcement of the judges’ restrictions.
“Where it gets problematic for a court to enforce would be comments that Trump may make about his rival, Pence, or his posts claiming that charges against him are orchestrated retaliatory actions by the Democratic Party,” Meyer told the Daily Caller. “If he has a colorable claim that his statements are a fair commentary about the presidential race and the quality of the candidate he is criticizing, he won’t be in violation of a court order.”