Gastonia, NC
A gag that can live on a quiet defendant is a trial-management tool. A gag that has to live on the opposition’s presumptive nominee is something more complicated, because the mouth being restrained belongs to the campaign as well as to the defendant. That is the tension, and I want to work through it carefully, because the version of this argument I hear most often at the poker table is not supported by the orders themselves.
I went back and read them. Judge Chutkan’s order in the January 6 case, entered last October, barred targeting statements about the special counsel and his staff, court personnel, and reasonably foreseeable witnesses. It also said, in terms, that the defendant remained free to criticize the Justice Department generally, to assert his innocence, and to claim that the prosecution against him was politically motivated. Judge Merchan’s order in Manhattan covered witnesses, jurors, court staff, prosecution staff, and — after the defendant went after his daughter by name — their families. It did not cover Merchan himself, and it did not cover Alvin Bragg. Both men were attacked by name from the courthouse steps most mornings of a six-week trial, and neither order ever purported to stop it.
That matters for how the criticism should be framed, and I am not willing to make an argument the documents contradict. The claim that these orders suppressed the candidate’s central message — that the cases are political persecution — is not sustainable. He has made that argument continuously, at volume, from a podium and a phone, for a year and a half, including three nights ago on a debate stage, and no order has told him he cannot. If anything the orders are unusual for how explicitly they carve that speech out.
So where is the problem? It is in the space between the text and the enforcement, and I say that as a man who reads copy for a living and knows that a clean rule can still produce a mess in application.
Start with the strongest evidence. In December the D.C. Circuit vacated a substantial portion of Judge Chutkan’s order as overbroad. It restored the defendant’s right to say whatever he liked about Jack Smith by name, and cut the surviving prohibition down to two categories: statements about known or reasonably foreseeable witnesses concerning their participation in the case, and statements about opposing counsel or staff or their families made with the intent to materially interfere with their work. That is the whole of it. The appeals court had also stayed the original order while it considered the question, so for a stretch of weeks there was no operative restriction at all.
Read one way, that sequence vindicates the system: an order was entered, a defendant appealed, the appellate court found it too broad, narrowed it to the two categories that are genuinely about protecting a proceeding, and the narrowed version stood. Read another way, and this is my way, it demonstrates that a district judge’s first instinct in a case of this magnitude was to write a rule broader than the Constitution permits, and that it took an emergency appeal by a well-funded defendant to find the line. Most defendants do not have that. The line that emerged is correct. The process that produced it should worry us.
The second problem is enforcement, and it is the part I think is genuinely new. In Manhattan, over eight days at the end of April and the beginning of May, the trial judge held a presidential candidate in contempt ten separate times over social-media posts, fined him a thousand dollars apiece, ordered the posts deleted by a specific hour of the afternoon, and warned in writing that continued violations would be met with incarceration. The posts at issue were mostly about Michael Cohen and about the jury, not about whether the prosecution is a witch hunt. The order was applied roughly as written. But a court directing a candidate for president to take down political speech by two-fifteen in the afternoon, on pain of jail, in the spring of an election year, is a thing that had never happened in this country before, and it happened ten times in three weeks without anyone quite pausing over it.
The limiting principle I would want fits in a paragraph, and to the credit of the appellate court it is roughly the principle that survived. Protect jurors, witnesses, court staff, and the administration of justice from true threats, intimidation, targeted harassment, and conduct designed to interfere with participation. Do not use a gag to suppress political characterization of the prosecution or criticism of the officials running it. Where a statement crosses into threat or tampering, punish the conduct under that line rather than widening the line until political speech becomes contempt-adjacent.
So my answer is narrower than the question invites but I think more durable. These orders have not gagged the campaign’s argument; that argument is running unimpeded and is currently winning. What they have established is that a criminal court can require a presidential candidate to litigate the boundary of his own speech, sentence by sentence, with jail on the table and the line findable only on appeal. A rule written around an unusually loud defendant survives the defendant, and the next court to reach for it will be citing a case rather than living through the facts that produced it.
Owatonna, MN
Minnesota still believes the First Amendment matters most when the speech is irritating and directed at officials. That conviction survives contact with these orders, but the orders themselves turned out to be considerably narrower than the argument I had been prepared to make, and I would rather correct myself in print than repeat something that is not so.
The sequence runs like this. Last October Judge Chutkan entered an order in the January 6 case restricting targeting statements about the special counsel and his staff, court personnel, and reasonably foreseeable witnesses, while expressly preserving the defendant’s freedom to criticize the Justice Department at large, to proclaim his innocence, and to say the prosecution was politically motivated. He appealed. The D.C. Circuit stayed the order while it considered the matter, and in December vacated everything beyond two categories: statements about known or foreseeable witnesses concerning their participation, and statements about opposing counsel, court staff, or their families made with intent to materially interfere with their work. It specifically held that the order should not have restricted speech about the special counsel himself, and the defendant has been free to describe Jack Smith however he pleases ever since.
I have spent enough years around portfolios and prospectuses to know the difference between what an instrument says and what people believe it says, and the gap here is unusually wide. The narrowed order is very close to the rule that critics of these orders — including me, in earlier conversations — were proposing as the reform. Threats, tampering, targeted interference with participants: that is the affirmed scope. Political criticism of the prosecution: outside it. The appellate court got there in about seven weeks.
That leaves a real question rather than a rhetorical one, and I want to state it in terms of who bears a cost, because that is how I was trained to think.
Trying an extraordinarily political case during an election creates risk. Somebody absorbs it. The court can absorb more through security, juror anonymity, searching voir dire, and scheduling, or it can shift some of the burden onto the defendant by restricting speech. Gag orders are a form of risk allocation, and the constitutional question is whether the judiciary may allocate that risk onto political speech because doing so is operationally cheaper. The D.C. Circuit’s answer was: only within two narrow categories, and not as to the prosecutor. I think that answer is close to right. My residual concern is with the interval before the answer arrived, and with what happens to defendants who cannot buy an emergency appeal.
The Manhattan order raises a different question and, to my mind, the sharper one. Judge Merchan’s order covered witnesses, jurors, court and prosecution staff, and — after the defendant attacked his daughter publicly — their family members. It did not cover the judge and it did not cover the district attorney, both of whom were denounced by name daily throughout the trial. Merchan wrote explicitly that the defendant’s legitimate speech rights must not be curtailed, that he had to be able to campaign fully and respond to political attacks, and that the order must not be used as a sword by potential witnesses rather than as a shield for them. Whatever one thinks of the underlying prosecution, that is a carefully limited instrument and it reflects a judge who understood the problem.
And then he enforced it ten times in three weeks, fined a presidential candidate ten thousand dollars, required deletion of posts by a stated deadline, and wrote that jail would follow further violations. The violations were mostly posts about Michael Cohen and about the jury. On the text of the order they were violations. That is the point at which I stop being able to describe this as ordinary trial management, not because any individual ruling was wrong but because the aggregate is genuinely novel: an American court supervising, post by post, the public utterances of a man who is at this moment the presumptive nominee of a major party.
I would be especially skeptical of any order whose boundary must be located through repeated disputes over particular statements. A rule requiring a candidate and his lawyers to parse each rally line for contempt risk begins to function like a licensing regime even when the rule’s text is narrow, because the chill operates on the boundary and not on the core. The clearer the prohibition, the more defensible the restriction.
There is also a precedent problem that does not depend on any of this being wrongly decided. Unique defendants produce doctrine, and doctrine outlives its facts. If broad initial orders followed by appellate narrowing becomes the accepted pattern, the next judge writes the broad order knowing it will probably be trimmed, and the next candidate spends the interval unsure what he may say. My preferred rule is the one the D.C. Circuit largely wrote, applied at the district level in the first instance rather than reached on appeal.
Prescott Valley, AZ
A judge can run a courtroom. A judge cannot run a rally. The difficulty this year is that the courtroom and the rally have been discussing the same subject, so a rule written for one might easily govern the other — and I want to examine whether it actually has, because that is a question with an answer rather than an opinion.
I taught for a long time, and the discipline that survives teaching is prospective clarity. Could a person know, before speaking, what was prohibited? So take the orders one at a time and grade them against that standard.
Judge Chutkan’s original order in the January 6 case prohibited targeting statements about the special counsel and his staff, court personnel, and reasonably foreseeable witnesses. It said in terms that the defendant could criticize the Justice Department generally, assert his innocence, and call the prosecution politically motivated. On the page, that is a legible rule. In application it proved not to be, because the operative word was targeting and nobody could say in advance which criticisms targeted a person and which merely described a case. The D.C. Circuit said as much in December when it vacated much of the order as insufficiently tailored and cut it to two categories: statements about known or foreseeable witnesses concerning their participation, and statements about opposing counsel or staff or their families made with intent to materially interfere. It also held that speech about the special counsel himself should never have been restricted.
Grade that as an educator would. The first draft failed the prospective-clarity test and the appellate revision passed it, which is exactly what appellate review is for and I am not going to pretend otherwise. Do not threaten witnesses is teachable. Do not publish juror information is teachable. Do not direct supporters at a court employee in order to interfere with her work is teachable. Do not make targeting statements about anyone connected to the case is not teachable, which is why it did not survive.
Judge Merchan’s Manhattan order was drawn narrowly from the start. Witnesses, jurors, court staff, prosecution staff, and family members. Not the judge, not the district attorney. He wrote that the defendant’s legitimate speech rights must not be curtailed and that he had to remain free to campaign and to answer political attacks. As a matter of drafting, that is a better instrument than the one Chutkan first entered, and it is worth saying so.
So the honest finding is that neither order has restrained the political argument, and the political argument has been made without interruption for a year and a half. What remains is the enforcement question, and that is where I still think something new has happened.
Between late April and early May, in the middle of a presidential campaign, a state trial judge found a presidential candidate in contempt on ten occasions for social-media posts, fined him a thousand dollars each time, ordered specific posts removed by a stated hour, and warned in writing that further violations would bring incarceration. Most of the posts concerned a witness and the jury. Under the order as written, those were violations. But the picture of a court and a campaign in a weekly cycle of contempt adjudication over what a candidate had posted the night before is not something American practice had produced before, and I do not think its novelty is erased by the narrowness of the underlying rule.
There is a civics problem in that, and it is the one I would put to students. Citizens should be able to understand why one kind of speech may be restrained and another may not, and the explanation here requires following a district order, a stay, an appellate revision, and a running series of contempt rulings across two jurisdictions. Most people have not followed any of it. What they took away is that a judge was fining a candidate for talking, and the fact that this impression is substantially unfair to both judges is itself a cost — a cost the courts have absorbed on behalf of a system that never thought about how to do this.
My preferred rule is close to the one that emerged, which I think is the fairest thing I can say. Restrain true threats, tampering, targeted intimidation, and disclosure that endangers protected participants. Leave political criticism of the prosecution and its officials alone. Write it that way at the district level in the first instance, so the candidate is not learning the boundary from an appellate opinion two months in. And keep the court out of weekly adjudication of rally lines where any other tool will do, because every contempt hearing over a political remark makes the judge a participant in the argument.
Dayton, OH
A shop can post a rule about discussing an inspection on the floor. The rule becomes a different object if the person under inspection is also campaigning to run the company and the inspection is the central issue in the election. At that point the process control and the political system are coupled, and coupled systems fail in ways neither component predicts.
That is the framework I brought to these orders. Working through the actual documents made me revise the diagnosis, though not the concern.
In process terms, a control should address the failure mode that justified it. If the failure mode is witness intimidation, write the control around witness intimidation. If it is juror exposure, protect juror identities. Judge Chutkan’s first order in the January 6 case was broader than that: it reached targeting statements about the special counsel, his staff, court personnel, and foreseeable witnesses, which is a control specified by relationship rather than by conduct. It did carve out political speech in terms — the defendant remained free to criticize the Justice Department, assert innocence, and call the case politically motivated — but the operative prohibition still turned on a word nobody could apply prospectively.
The D.C. Circuit corrected that in December, and the correction is close to the two-tier rule I would have written myself. Tier one: statements about known or reasonably foreseeable witnesses concerning their participation in the case. Tier two: statements about opposing counsel, court staff, counsel’s staff, or their families, made with intent to materially interfere with their work in the case. Everything beyond those two categories was vacated, including any restriction on speech about the special counsel by name. That is a control defined by conduct and intent rather than by proximity to the case, and it is what a properly specified rule looks like.
Judge Merchan’s order in Manhattan was drawn tightly from the outset — witnesses, jurors, court and prosecution staff, families, and not the judge or the district attorney — and he recorded in the order itself that the defendant had to remain able to campaign and to answer political attacks. So the fair conclusion is that the instruments were, or quickly became, reasonably well specified. The coupling problem I was worried about did not show up where I expected it.
It showed up in enforcement, and that is a different failure mode. Over eight days at the end of April and beginning of May, the Manhattan court adjudicated ten contempt findings against a presidential candidate for social-media posts, imposed the statutory maximum fine on each, ordered posts deleted by a specific time of day, and put incarceration on the record as the next escalation. The posts were mostly about a cooperating witness and about the jury. Under the order those were violations, and I am not arguing the rulings were wrong on their own terms.
What I am arguing is that a control operating at that cadence has become part of the system it was meant to sit outside of. Engineers watch for that. A monitoring function that requires weekly intervention has stopped monitoring the process and started running it, and the feedback loop it creates is not the one anybody designed. Here the loop ran through a national campaign: post, contempt motion, hearing, ruling, coverage, response.
The court did not seek that role. The structure handed it to them, because there was no other mechanism available once the conduct recurred. And notice the specific defect: the judge said out loud that the maximum fine available to him — a thousand dollars — was almost certainly not a deterrent for a defendant of this wealth, and that the statute gave him nothing between that and jail. A control with only two settings, one too weak to matter and one too strong to use, is not a control. It is a gap somebody has to design around in the moment.
That is the argument for more tools rather than a broader rule. Rigorous juror screening, juror anonymity, security details, controlled scheduling — each imposes cost on the institution rather than on speech, and a high-consequence process is supposed to receive more resources, not more restrictions. The Manhattan court used several of them; it seated an anonymous jury and screened aggressively. My criticism is that when those proved insufficient, the remaining option was contempt against a candidate, which is a blunt instrument for a problem that recurs weekly.
There is also a long-term method problem that has nothing to do with either judge. Special cases become standard work. The pattern established here — a broad first order, an emergency stay, an appellate narrowing, then a running contempt docket — will be cited by people who did not live through the facts. The next defendant may be quieter, or more sympathetic, or aligned with the people who currently think all of this was proportionate.
So my answer is genuinely mixed rather than diplomatically mixed. On their text, and certainly after appellate revision, these orders protect legitimate trial interests and leave the campaign’s central argument untouched. What is new is not the scope of the rule but the fact of a criminal court supervising a presidential candidate’s public statements on a rolling basis, with jail as the announced next step and nothing in between.
Wheeling, WV
A quiet defendant can be gagged as courtroom hygiene. A presidential candidate cannot be gagged the same way without touching the campaign, because the mouth belongs to both. That is the part people have worked hard not to see. What I did not see, until I sat down with the orders themselves, is that both judges saw it plainly and wrote accordingly.
Thirty years around industrial safety and union-side labor relations taught me that management always has a reason for a rule, that the reason is often good, and that the rule can still reach too far. The first question is never whether safety matters. It is whether the rule is fitted to the danger. So I applied that test here and it came back differently than I expected.
Judge Merchan’s order in the Manhattan case covered witnesses, jurors, court staff, prosecution staff, and — after the defendant went after the judge’s daughter by name — their family members. It did not cover Merchan. It did not cover Bragg. The defendant called that judge corrupt and conflicted and that district attorney a political hack from the courthouse steps most mornings of a six-week trial, and no order told him to stop, because no order reached them. Merchan wrote into the order that the defendant’s legitimate free speech rights must not be curtailed, that he had to be able to campaign fully and to answer political attacks, and that the order was a shield for witnesses rather than a sword for them. In the federal case, Judge Chutkan’s order said in terms that the defendant could criticize the Justice Department, maintain his innocence, and call the prosecution politically motivated — and the appeals court in December cut her order back further and freed him to attack the special counsel by name.
I am not going to stand here and say those orders silenced his argument. They have not. He has made it every day for a year and a half, and a good many voters agree with him, and he stood on a debate stage three nights ago and made it again in front of fifty million people. Anybody telling you the courts have muzzled that message is selling something, and I have spent too long calling out that kind of thing on the other side to let it pass on mine.
Here is what I do say, and it is narrower and harder to answer. Between the end of April and the beginning of May, a judge held a presidential candidate in contempt ten times over social-media posts, fined him a thousand dollars a post, ordered specific posts pulled down by two-fifteen in the afternoon, and wrote that if it happened again he would consider putting him in a cell. The posts were mostly about Michael Cohen and about the jury. Under the order, they were violations. I am not disputing the rulings. I am saying that a court running a weekly discipline docket on a man about to be nominated for president is not courtroom hygiene, whatever the paperwork calls it.
I have watched this exact dynamic destroy plants. The rule is fine. The rule is even necessary. But a supervisor who answers every provocation with a written warning ends up in a grievance cycle that consumes the department, and after a while nobody remembers what the original safety problem was. They remember the warnings. The stronger move — and I saw it work more than once — is to punish the conduct that actually endangers somebody and let the grumbling pass overhead.
There is a hard fact on the other side and I will state it fairly, because a one-sided grievance is a losing grievance. The witnesses in that case are real people with addresses, and a man with a hundred million followers pointing at them by name is not an abstraction. Court staff received threats. The judge’s daughter was named publicly and had to be added to the order. Jurors in a Manhattan courtroom were frightened enough that one prospective juror asked to be excused over exposure and the court kept identifying details out of the record. That danger was not invented by prosecutors and it did not stop existing because the defendant was running for office. If you want the courts to leave political speech alone — and I do — you have to be willing to say that the line sits at people who can be hurt, and then live with the line when the man you like crosses it.
So my position is this. The line the appellate court drew is about right: threats, tampering, and targeted interference with participants on one side, political criticism of the prosecution and its officials on the other. Both trial judges either started near that line or were moved to it. What troubles me is the enforcement machinery that grew up around it in an election year, because the machinery is the precedent, not the text. A future judge will not remember that Merchan exempted himself from his own order. He will remember that a court found a presidential candidate in contempt ten times and nothing bad happened to the court. That is what gets into the handbook.
Tyler, TX
East Texas lets a man at the sale barn cuss the inspector. The inspector still inspects. If the man threatens the inspector, that is different, and everybody at the barn knows the difference without being told. That distinction is what I want from gag-order law, and I went into this question assuming the courts had failed to draw it. Reading the orders, they mostly drew it. The trouble is somewhere else.
I write commercial insurance, and everything in my trade depends on defining the covered event before the loss. You do not write a policy against bad behavior and let the adjuster decide afterward what the phrase meant. You name the peril. Threat. Harassment. Interference. Disclosure of protected information. Those are insurable categories because a policyholder can understand them and price around them.
Graded that way, both orders did better than their reputation. The Manhattan order covers witnesses, jurors, court and prosecution staff, and families, and pointedly does not cover the judge or the district attorney, both of whom have been called every name available for the length of the case. The federal order in Washington preserved in writing the defendant’s right to say the prosecution is politically motivated, and the D.C. Circuit then cut the rest down to two categories — witness participation, and interference with counsel and staff — and gave him back the right to attack the special counsel by name. So the peril was named. The political argument was never covered. That is more than I expected to find and I am not going to pretend otherwise to keep an argument tidy.
Now here is the test I keep coming back to, and it is the only one I fully trust. Take the same facts and turn the parties around. A Republican district attorney charges the leading Democratic presidential candidate. A Republican-appointed judge enters an order protecting witnesses, jurors, and prosecution staff, exempts himself and the prosecutor from its coverage, and expressly preserves her right to call the whole thing a partisan hit job. She calls it a partisan hit job daily, at length, and nobody stops her. She also posts repeatedly about a cooperating witness and about the jury, and the judge fines her a thousand dollars a post, ten times over eight days, orders the posts deleted by a fixed hour, and warns that the next one may bring jail.
Ask two questions about that honestly. Was the order unreasonable? I do not think so, and I would have trouble arguing otherwise without abandoning the position I take on witness protection every other day of the week. Was the enforcement — ten contempt findings against a major-party nominee inside three weeks of a general election year — an ordinary event we should file and forget? No. And I notice that my answer to the second question does not change when I turn the parties back around, which is how I know it is worth something.
That is where the institutional risk sits, and it is a predictability risk more than a scope risk. Businesses can insure against defined perils because the policy tells them where the line runs. They cannot price a risk whose boundary is located after each claim. A candidate under one of these orders is in that position with respect to the boundary, not the core. Nobody needs a lawyer to know that publishing a juror’s employer is out of bounds. The uncertainty lives in the margin — whether a post about a witness’s credibility concerns his participation in the case or his character as a public figure — and uncertainty in the margin chills more speech than the prohibition names. In constitutional terms that matters. In practical terms it means the court has regulated more speech than it wrote down.
So my prescription is not to loosen the categories. It is to make them cheap to comply with. Name the peril in conduct terms rather than by relationship. Publish the boundary in advance rather than discovering it through motions. And when a violation recurs, exhaust the tools that cost the court something before reaching for the one that costs the defendant his speech — anonymous juries, security, sealing, and where necessary a schedule that does not run a trial through the heart of a campaign. The government chose to proceed on this calendar. Some of that cost properly stays with the government.
I will say the fair thing about the other side too, because a one-sided argument is a bad argument in my business as much as anyone’s. Witnesses in these cases have received threats. Court staff have received threats. The judge’s daughter was named and had to be brought under the order. That is not manufactured, and a man with a hundred million followers naming a witness is not the same event as a man cussing an inspector at a sale barn. If I want political criticism protected — and I do, absolutely — then I have to accept that the line falls at people who can be hurt, and accept it when it catches somebody I would rather it did not.
That rule still reads the same way with the names reversed. That is why I trust it.
Long Island, NY
I draft protective orders, and a protective order should tell you what it protects. If the answer drifts from participant safety toward message management, the instrument has changed function even when the caption has not. That was the concern I brought to these two orders. Having now read both, along with the contempt record, my concern has moved from the drafting to the docket.
Take the instruments first, because the drafting is better than most commentary allows.
Judge Merchan’s order covered witnesses, jurors, court staff, staff of the district attorney’s office, and, after an expansion at the beginning of April, family members of those people and of the court. It did not extend to the judge or to the elected district attorney, which is unusual restraint in a case where both were the target of daily and personal attack. He wrote into the order that the defendant’s legitimate free speech rights should not be curtailed, that he must be able to campaign fully and respond to political attacks, and that the order was not to be used as a sword by potential witnesses. Judge Chutkan’s federal order was broader on its face but carved out, in terms, criticism of the Justice Department, protestations of innocence, and the claim that the prosecution was politically motivated. In December the D.C. Circuit found even that too loosely tailored, vacated everything beyond two defined categories — statements about known or reasonably foreseeable witnesses concerning their participation, and statements about opposing counsel, court staff, or their families made with intent to materially interfere with their work — and held that speech about the special counsel should never have been restricted at all.
As a drafting matter that is a good outcome, and the affirmed categories are close to the ones I would have proposed in the abstract. Notice, tailoring, and a conduct-based standard rather than a relational one.
The difficulty is what happened next, and it is a difficulty about administration rather than text.
In Manhattan, over eight days at the end of April and the beginning of May, the court entered ten contempt findings against the defendant for social-media posts, imposed the maximum permitted fine of one thousand dollars for each, directed that specified posts be removed by a stated hour that afternoon, and recorded a warning that further violations would be met with a term of incarceration. The judge noted, accurately, that the fine was almost certainly not a deterrent for a defendant of this wealth and that the statute gave him nothing else short of jail. Most of the posts concerned a cooperating witness and the composition of the jury. Under the order these were violations, and I do not think any individual ruling was wrong.
But consider what the aggregate establishes as precedent. A state trial court, applying a narrow and carefully drawn order, conducted a rolling adjudication of the public statements of the presumptive nominee of a major party during a presidential campaign, with incarceration as the announced next step, because the statutory remedy available to it was inadequate to the defendant in front of it. That is not a tailoring failure. It is a remedial gap, and remedial gaps are how courts back into roles nobody assigned them.
The tailoring analysis is supposed to account for alternatives, and here the alternatives were largely used. The Manhattan court seated an anonymous jury, screened extensively, and kept identifying details out of the public record. When those measures were exhausted and the conduct continued, the remaining instrument was contempt against a candidate. I would rather the system had a better answer than that, and I do not think either judge is to blame for reaching for the only one available.
There is a precedent issue that will outlast every one of these rulings. Novel exercises of power are defended as responses to unique facts, which they usually are, and the doctrine then detaches from the facts. What a future court will remember is not that Judge Merchan exempted himself and the district attorney from his own order, or that the D.C. Circuit trimmed Judge Chutkan’s back to two categories. It will remember that a criminal court supervised a presidential candidate’s speech through a contempt docket and that the institution survived the experience.
So my rule would be explicit and I would put it in a rule of procedure rather than leave it to case law. For a candidate for major public office, an order may restrain true threats, tampering, targeted intimidation, and disclosure endangering protected participants, and nothing else. The order should be drawn in those terms at the trial level in the first instance. And where enforcement against such a defendant becomes recurrent, the court should be required to consider continuance, sealing, and enhanced protective measures on the record before escalating toward incarceration. Clarity is not leniency; it is notice, and notice is the foundation of everything I draft. What this year has demonstrated is that we had the notice roughly right and the remedies badly wrong.
Cheyenne, WY
You can protect a juror’s name. You can protect a witness from threats. You can protect court staff from targeted harassment. Those are court jobs, and I have never had any argument with them. Protecting a prosecutor or a judge from political criticism would be something else entirely, and my objection to these orders was that they had crossed from the first category into the second. Having gone and read them, I was wrong about that, and I would rather say so on the page than let an earlier remark of mine stand uncorrected.
I keep books for a freight and energy-services firm, and the first discipline of the trade is that two different expenses do not belong in the same account. Threats are one account. Tampering is one account. Political speech is a third, and you do not mix them because the defendant is difficult. That is the standard I wanted applied. It turns out it largely was.
Judge Merchan’s order in Manhattan covered witnesses, jurors, court staff, prosecution staff, and their families. It did not cover Merchan himself and it did not cover the district attorney. Both have been denounced by name, daily, for months, and nothing in the order touched it. He wrote in the order that the defendant’s legitimate speech rights must not be curtailed and that he had to be able to campaign and answer political attacks. In the federal case, Judge Chutkan’s order preserved in terms the defendant’s right to call the prosecution politically motivated, and in December the appeals court in Washington cut the rest of that order down to two narrow categories and restored his right to say whatever he liked about the special counsel. Those are clean entries. The categories I wanted separated were separated, and in the federal case the appellate court did the separating within about seven weeks.
So the account I need to open is a different one, and it is the enforcement account.
Between the thirtieth of April and the sixth of May, the Manhattan court found a presidential candidate in contempt ten times for social-media posts, fined him a thousand dollars for each, ordered specific items taken down by a stated hour, and put on the record that continued violations would bring a jail term. The judge said plainly that the maximum fine available to him was probably no deterrent to a man of that wealth. Most of the posts concerned Michael Cohen and the jury. Under the order, they were violations, and I am not going to pretend the entries were miscoded.
But look at what the ledger shows in total. Order narrow. Political speech untouched. Enforcement recurrent, escalating, and aimed at the public statements of the presumptive nominee of a major party in an election year, with the only remaining remedy being confinement. Ten contempt findings in eight days is not trial management by any definition I would sign off on. It is a court and a campaign locked in a weekly cycle, and neither the judge nor the candidate had a way out that the law provided.
I want to note the thing on the other side because leaving it off would be dishonest bookkeeping. Witnesses in that case have names and addresses and jobs. Jurors were frightened enough that the court kept identifying details out of the record and one prospective juror asked to be excused over exposure. Staff received threats. The judge’s daughter was named publicly, which is why the order was expanded to families at the beginning of April. That danger was real and it was not manufactured by anyone’s press office. If a person wants political criticism left alone — and I do — then the line has to sit at people who can actually be hurt, and it has to hold when the person crossing it is somebody you would rather defend.
The orders themselves fell in a reasonable place. Threats, tampering, intimidation, protected identifying information — those go in the fence. Political criticism stays outside it. That is a small fence and it is the right size, and both courts either drew it that way or were moved there quickly.
What was new was not the fence. It was ten contempt findings against a candidate, a standing threat of jail, and a court with no intermediate remedy between a meaningless fine and a cell. That gap belongs to the legislature, not the judge, and it is the item I would carry forward. Give a trial court something proportionate to use against a wealthy defendant who will not comply, and give it before the next case rather than during it. Write the order narrow at the trial level so nobody has to go to an appellate court to find the boundary. And keep the schedule out of the campaign where the calendar allows.
Five days ago the judge lifted the parts of the order covering witnesses and the jury, on the reasoning that their work is finished. What is left — court staff, prosecution staff, and families — runs until sentencing, which is set for the eleventh of July. So the instrument closes itself out in under two weeks, which is more than most of the commentary about it will manage. I said earlier in this forum that the courts had gagged the political argument. They had not. The argument ran the whole way, uninterrupted, and it is running still. What they did was supervise a candidate’s conduct toward witnesses and jurors, weekly, in public, with jail on the table, and there is no ledger in this country that has an entry for that yet.
