Mike Pence Simplifies the Gag Order Dispute
If my Irish Daylight Savings calculation and PACER operations are correct, Donald Trump submitted his reply to DOJ’s opposition to a stay on the gag Judge Tanya Chutkan imposed at around 8:50PM ET last night.
President Trump’s political opponents (some of whom are witnesses), the Biden Administration, and the citizenry writ large in connection with the 2024 campaign. This is precisely where the Gag Order runs headlong into unconstitutional shoals. President Trump is absolutely entitled to defend himself publicly and explain with specificity why the charges against him are false and meritless.
The filing includes the kind of sophistry John Lauro excels at. It continues to artificially dismiss the abundant evidence that Trump’s statements routinely lead to violence (in one place, by dismissing anything that happened more than three months ago: Taylor Taranto’s stalking of Barack Obama in response to Trump’s Truth Social post was on June 28, exactly four months before this filing).
But it is not frivolous. Trump wildly misrepresents the scope of the gag, particularly as it pertains to Joe Biden, about whom the gag imposes no restrictions.
This Order shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.
These are not easy First Amendment questions.
And, Trump used the prosecution’s request to put restrictions on witness tampering into Trump’s release conditions (which is where Amy Berman Jackson put a similar gag for similar reasons on Roger Stone) to note its tactical position of strength.
The prosecution’s request is also jurisdictionally improper. The Court entered the Gag Order, and President Trump promptly filed a notice of appeal. The prosecution does not dispute that the Gag Order is an appealable order. See Doc. 110, at 8. Thus, when President Trump filed his notice of appeal, it divested the Court of jurisdiction to amend or modify the Gag Order: “The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). The prosecution’s latest proposal seeks to end-run around the Court of Appeals’ jurisdiction by modifying and reasserting the Gag Order as a condition of release while it is being challenged on appeal, which the Court lacks jurisdiction to do. See id.
Trump intends to take this gag order to a partisan Supreme Court where several Justices are already raring to forcibly protect the kind of violent threats that Trump specializes in. Heck, if Trump succeeds as well as he might, his appeal of this gag could solve the problem with the “mob” part of the indictment which I’ve noted.
And all that’s why the stakes of Pence’s decision to drop out of the presidential race yesterday matters.
I came here to say it’s become clear to me: this was not my time. So after much prayer and deliberation, I have decided to suspend my campaign for president, effective today.
He’s absolutely right. It is not the time for someone running on having upheld the Constitution to run in the Republican Party. The GOP is little more than a criminal protection racket to shelter one man, Donald Trump.
Pence dropped out before 5PM ET. By the time Trump submitted his motion claiming some of the witnesses the gag would prevent him from attacking were his political opponents, Pence dropped out of the race.
So long as Pence was in the race running on the policy of upholding the Constitution, as he did on January 6, there was a clear conflict between the gag’s restrictions on Trump’s attacks on witnesses and its explicit permission to attack the policies of his rivals in the 2024 Presidential race.
That conflict has been resolved.
These First Amendment questions are still difficult. This appeal may still give Trump a vehicle to get SCOTUS to protect the kind of mob incitement that is at the core of the indictment.
But yesterday, Pence resolved the most difficult of the questions.
Update: On Sunday night, Judge Chutkan denied the stay. Her order notes:
- Even if a request to alter Trump’s release conditions were procedurally proper, it’s not necessary to enforce the terms of the gag
- Trump ignored the causal link between his attacks and certain kinds of threats
- Trump failed to fully raise the First Amendment interests of his followers in his opposition to a gag
- Trump ignored the way Judge Chutkan had tailored her order (for example, by not gagging attacks on DC)
- Trump adopted a dictionary rather than the well-accepted legal definition of “interested parties”
- The difference between Trump’s general attack on the “Election Rigging Biden Administration,” which is not gagged, and a post claiming “if [Meadows would] say BAD THINGS about that ‘MONSTER'” Donald Trump he might avoid prison, which is gagged, is clear
Settling the question once and for all the old firehouse joke: is there a difference between shouting “fire!” in a crowded movie theater, or “movie!” in a crowded fire station. That is, whether false equivalence matters when people’s lives (or government) is at stake.
The tired trope about yelling “fire” in a theater has been debunked many times. It was dicta —aka a non binding offhand statement—in a case that was later overturned.
Please stop using this false analogy.
https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/
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It might not be technically ‘settled law’, but as an expression to describe the limits of First Amendment ‘free speech’ rights, it has always been very effective. There are a hundred ways in which speech is not protected by any resort to the First Amendment, and many of them are quite technical, but this phrase is a great clarifier for the general public.
And in fact it’s being used to great effect against Trump in his legal cases – to fetter his ‘free speech’ rights to intimidate public servants and witnesses. The minute you are a defendant in either a criminal or civil case, your rights can be strictly curtailed – as Trump is finding out.
Why pray tell was my post deleted … fee speech indeed!
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Because you apparently need the reminder: https://www.emptywheel.net/2019/02/14/open-thread-a-mournful-valentine/#comment-775364
A painfully accurate assessment that most others in the media do not know how to wrestle with. Thank you.
Mike Johnson’s elevation to the Speakership eloquently proves your point.
With unanimous votes for one of the string pullers in the attempted coup, the Republican legislative body goes full doom loop, even as the attorneys who facilitated the exploit plead guilty to filing knowingly false legal documents.
The House Republicans are in full doom loop. The chaotic government they promised the people, is realized. And now everyone is supposed to get down on their knees and pray.
It’s all so barfworthy.
“Legislative body”? More like performance-art troupe/griftatopia.
Agreed, and it’s more than just one, but the point stands.
see also: Sarah Kendzior
With Lauro’s crude exaggeration of the reach of the gag order and its effects on “President” Trump’s renewed bid for public employment, Lauro is writing a script for the Supreme Court. He’s not making a persuasive legal argument, but he’s as persuasive as a few members of the Court need him to be.
I think Alito and Thomas are completely off in space. I think some of the others may be more mindful of how writing off Trump’s threats may make it easier for extremists to threaten them.
So easy to be off in space when one’s getaway RV is a freebie.
Have to wonder what Alito’s receiving for his efforts.
Pity Clarence wouldn’t let the President write off student loans. He’s benefited from so many write-offs himself, one might think he’d feel intellectual if not emotional empathy. But that wouldn’t be Clarence, let alone Alito.
Are there any candidates with alleged conflicts (beside Pence) who Trump’s team could be referring to? Nikki Haley, I’m guessing.
As of last night, the gag does not cover Biden, it does cover Pence, and none of the other declared candidates have any knowing role as witnesses (though I suppose Tim Scott could hypothetically be implicated).
Thanks! I should’ve thought of Scott—he was at the Capitol on January 6th, and although Haley has other connections to Trump, but was not there.
One has to wonder whether Pence’s decision to suspend his campaign was not just lack of support from within his party but also a result of credible threats received from within his party causing Pence to seek protection from unhinged MAGAts under the gag order (not something he’d admit to, of course).
Speaking of gag orders, Trump inadvertently describes/reveals himself while attempting to disparage Judge Ergeron on Truth Social yesterday. From Trump’s rant, we may deduce that Trump is “grossly incompetent” and “a partisan political hack who totally disregards the Court of Appeals decisions against him” (in fact, any decisions against him, legal or electoral).
My source for the rant quotes: https://www.salon.com/2023/10/28/calls-fraud-trial-grossly-incompetent-in-latest-truth-social-freak-out/
Pence was never a viable candidate in the first place. He was headed towards irrelevance before Trump picked him up.
He has no significant constituency within the Republican Party – he lacks the feral viscousness and entertainment value of Trump, and the MAGA faithful will never forgive him for doing his duty on January 6th.
Pence, aspiring Theocrat that he is, is too normal for todays Republican Party. “Republican voters for sanity” could hold their meetings in a phone booth.
Lauro/DJT:
The gag order:
As usual, well done Marcy. I don’t know how the holes in Lauro’s statement can be illuminated any clearer.
I have no idea whatsoever if there’s any merit to their jurisdictional argument wrt the appeal. If presented in appeal by DOJ as you do here, I’d think not (but who knows).
Re-read your link back to Trump is going through (…): I don’t fully get why you say…
(not asking for explanation: sure I’ll “get it” if/when we get to that point)
Ever since I’ve been reading your stuff, especially of late this is (for me) the best work you’ve ever done. You are always hitting the bullseye. Really important work.
Trump is now demanding Pence’s endorsement. Not because he needs the votes (since Pence had no measurable constituency to speak of), but because no victory is complete without denigration:
https://www.cnn.com/2023/10/28/politics/trump-pence-endorsement-antisemitism-biden/index.html
The kind of person Trump REALLY likes around him are critics who later come to him on hands and knees. These are much better than Trumpoids who were all for him in early days.
What kind of God will now answer Pence’s prayers if he should endorse Trump ? How will endorsement be reconciled with truthful testimony ?
Oh, he pressured me to disenfranchise millions of voters , but that dont make him a bad guy.
Trump hates himself so much, he has to distribute it to a steady supply of sycophants, or he overheats.
When the poo-poo hits the fan…
https://youtu.be/olXUIcb80N0
And the specific terms of the denigration are interestingly couched :
“Because I had a great successful presidency, and he was the vice president, he should endorse me,” said Trump, the front-runner for the 2024 GOP nod. “I chose him, made him vice president. But … people in politics can be very disloyal. I’ve never seen anything like it.”
It is an attempt to create a framework of ‘ordinary campaign speech’ as part of the pretence that the remarks about Pence should be treated as innocuous in context content and intent; whereas the contrary is true.
Had the order not been stayed this would have been a breach. This is Trump trolling the court. It has those calculated elements of implausible deniability that delight his loyalists who imagine he is being clever.
Had similarly framed comments been made prior to Pence’s withdrawal from the campaign race [ eg “I call on Mike Pence to withdraw, and endorse me. Because etc …” ] the statement would have been in what was discussed as “dual use” on a previous thread, which Marcy had anticipated would be how Trump would test the boundaries of the order.
Marcy wasn’t wrong.
What kind of God will now answer Pence’s prayers on if he should endorse Trump ? How will endorsement be reconciled with truthful testimony ?
Oh, he pressured me to disenfranchise millions of voters , but that dont make him a bad guy.
A lot of discussion has centered around potential threats that could influence witnesses. But from a legal and trial perspective what is equally concerning is the ability Trump has through his public notoriety to circulate without cross examination and not under oath statements that the “trier of fact” might take into account in reaching a decision. In the NY case this is not an issue because it is a bench trial. But in the criminal trials there will be juries and juries will take into account their own general knowledge, even if the judge instructs them to only consider the law and the testimony.
One of the problems defending someone in criminal court is that often that person will not make a good witness (for a variety of reasons). But if you ask around, you will hear that “the jury wants to hear the defendant deny the did it.” There are limits on counsel how far they can go suggesting facts not put into the record by testimony.
In Trump’s cases, he is so prominent that anything he says makes its way to everyone’s ears. In his criminal cases, the more he rants outside of court, the less he will need to testify under oath at trial.
Since the NY case is a bench trial, and a civil one, all this doesn’t matter much. But in a criminal case the prosecution is barred from commenting on the defendant’s decision not to testify (5th Amend.). That means that in future trials the prosecution cannot say: “We have all heard Trump deny liability saying such and such, but notice that he will not stand up in court today and say that under oath!”
That is another problem that a gag order would deal with.
I still have a hard time imagining he will testify.
This is an astute comment. His notoriety and reach are pretty extreme challenges to our justice system. I agree that he is quite unlikely to testify-if he does, it would surely be despite Lauro’s counsel.
Chutkan’s order: https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.124.0.pdf
Footnote 1 Denies application to incorporate Order into conditions of release
“even assuming request was procedurally proper…it is not necessary to effectively enforce the Order at this time”
Thanks, PJ!
This is absurd, absent REQUESTING illegal action of violence, the “Brandenberg” standard stands – speech can not be restricted due to actions by others which was not requested by the speaker directly, and to be engaged in “imminently.” This ignores both the Constitution and prior judicial precedent. It’s not going to be shocking when the SCOTUS stomps this into dust.
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Baloney. There are numerous forms of speech that can be at least partially restricted, including obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, and false statements of fact. And that is without considering that Trump is a criminal defendant with specific release conditions, which Chutkan may regret not making her order a part of. But her order is certainly in the interest of justice.
Spam, a First Amendment absolutist’s fever dream. That Trump’s speech frequently elicits violent conduct by his supporters against his claimed enemies is a matter of public record.
Racket
Mike Johnson fronts to back it,
Protects the Donald racket,
His cult is how they whack it:
Our democracy.
Cheat
Deceit
Browbeat
Their House is a good reason,
It’s time to put the squeeze on,
The way they put the freeze on,
Our democracy.
It’s time to call foul ball on,
the lies that they recall on,
those fascists who forestall on,
Our democracy.
Mike Johnson fronts to back it,
Protects the Donald racket,
His cult is how they whack it:
Our democracy.
Short-change
Disarrange
Our democracy
https://www.youtube.com/watch?v=e5bLYvJeqW0
“The Addams Family intro”
Can Judge Chutkan make everyone refer to him as previous President? Can anyone? It’s like getting bitten by a mosquito every single time he’s referred to as (current) President – trips PTSD. And that would infuriate him, I’m sure.