Published by The Lawfare Institute
in Cooperation With
Through the late 1700s, English judges would sometimes enforce order within their courts by amputating the right hands of those found in contempt and displaying the severed appendages outside the courthouse. Donald Trump probably doesn’t have to be worried about this particular form of discipline. But looking at the way things are going in the various civil and criminal trials against him, he may need to start thinking more carefully about what he’s risking by continuing to push the boundaries of what the judges presiding over these cases will allow.
In the New York civil case brought by that state’s attorney general, New York Supreme Court Justice Arthur Engoron has already fined Trump $15,000 after the former president twice violated a gag order imposed by Engoron forbidding public comments about court staff. In Washington, D.C., Trump is in the process of appealing a separate gag order, issued by Judge Tanya Chutkan, that bars him from “making any public statements, or directing others to make any public statements” that “target” court staff or the witnesses and lawyers involved in the case. During a brief interlude in which the gag order was stayed, Trump let loose a slew of posts on Truth Social attacking “Deranged Jack Smith,” complaining about “Dumb, Weak, Slow Moving, Lethargic, Gutless, and Lazy” Bill Barr, and questioning whether Mark Meadows might be willing to “lie about the Rigged and Stollen [sic] 2020 Presidential Election” to secure immunity from prosecution. Then, just hours after Chutkan lifted the administrative stay and reimposed the gag order on Oct. 29, Trump made another post declaring the order “unthinkable” and decrying Chutkan (who exempted criticism of herself from her order) as “very Biased” and “Trump Hating”—which, while not technically a violation of Chutkan’s order, suggests that he hadn’t exactly been humbled.
With his civil trial ongoing and his various criminal prosecutions in the pretrial phase, Trump’s confrontations with the two judges in New York and Washington, D.C., act as a preview of sorts for how he might handle the upcoming slate of trials. Clearly, he has no intention of backing down from his confrontational approach. Instead, he’s situating himself adversarially against not just prosecutors, but against the justice system as a whole, including judges and court staff—tacitly and not-so-tacitly encouraging threats against them, then complaining bitterly of persecution when the courts respond.
As both Engoron and Chutkan have recognized, Trump’s comments aren’t just trash-talking—they’re potentially dangerous. “I am very protective of my staff,” Engoron said after issuing a second fine against Trump on Oct. 25 for attacking his chief clerk in front of the press. “I don’t want anyone killed.” Imposing her gag order, Chutkan wrote, “Undisputed testimony cited by the government demonstrates that when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.” If Trump keeps pushing the boundaries established by judges, as it seems that he will, this problem will only grow more severe in the coming months.
Trump’s habit of attacking the people and institutions seeking to hold him to account is nothing new. During the Russia investigation, he railed regularly on Twitter against Special Counsel Robert Mueller and his “terrible Gang of Angry Democrats.” Mueller’s final report described in depth how Trump used tweets and public statements to alternately butter up friendly witnesses and then attack them viciously when news broke of their cooperation with investigators. The legal analysis in the report is cagey, but Mueller hints strongly that such actions could well constitute obstruction of justice—an effort to block witnesses from speaking honestly with the special counsel by cajoling and threatening them. And whether or not the conduct rose to the level of obstruction of justice, the report’s factual recitation suggests strongly that witnesses were, in fact, intimidated. In January 2019, for instance, Michael Cohen canceled his planned congressional testimony, citing threats to his family.
In a further echo of the Mueller era, one of Smith’s filings points to gag orders issued by the U.S. District Court for the District of Columbia in three Mueller-linked cases: the prosecutions of Trump associate Roger Stone, former Trump campaign manager Paul Manafort, and accused Russian spy Maria Butina. The Stone gag order is perhaps particularly apropos. In that case, Judge Amy Berman Jackson barred Stone from making any public statements about his prosecution or the Mueller investigation, broadening the order after Stone attacked the judge on Instagram and posted a picture of her next to what looked like the crosshairs of a firearm. According to recent comments by another judge on that same court, Senior Judge Paul Friedman, Judge Jackson required protection from the U.S. Marshals following Stone’s post.
With this in mind, Trump’s Truth Social posts decrying “Deranged Jack Smith” and “TRUE TRUMP HATER” Chutkan appear familiar. So, too, does the post that first inspired Engoron’s gag order: Trump baselessly claimed that Engoron’s chief clerk, who he declared was “running the case against [him],” was the “girlfriend” of Senate Majority Leader Chuck Schumer (D-N.Y.). As Smith’s team put it in the office’s initial motion for a gag order, “Since the indictment in this case, the defendant has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses.”
And, Smith explains, those posts have resulted in “multiple threats” against Smith personally and “intimidating communications” directed against one of Smith’s prosecutors whom Trump targeted by name. Chutkan, too, has faced threats. As the special counsel’s motion notes, a Texas woman was arrested in early August after leaving a voicemail with the judge’s chambers that threatened Chutkan’s life and referred to her with a racial slur. A number of news outlets have reported observing increased security around Chutkan at the D.C. federal courthouse, including federal marshals escorting her to and from the building’s cafeteria.
Smith links this pattern to the same conduct described in the Jan. 6 indictment, pointing to Trump’s habit of questioning the integrity of the 2020 election and singling out particular individuals for his supporters to harass as evidence of his “established practice of issuing inflammatory public statements targeted at individuals or institutions that present an obstacle or challenge to him.” Election workers and public officials who refused to play along with Trump’s efforts to overturn the vote—or who, like Georgia election volunteers Ruby Freeman and Shaye Moss, became the subject of conspiracy theories amplified by Trump—faced harassment and threats. Moss and Freeman testified before the Jan. 6 committee about unexpected visitors attempting to force themselves inside a relative’s home to conduct a “citizen’s arrest.” This campaign of terror features prominently in Fulton County District Attorney Fani Willis’s indictment of Trump and 18 other defendants in relation to their efforts to meddle with the 2020 vote count in Georgia.
Trump is generally canny enough to maintain some level of distance from this harassment. He hasn’t, for example, explicitly directed his supporters to harass Judge Chutkan; rather, he posts complaints about Chutkan and then disclaims any responsibility for whatever follows. “The prosecution does not and cannot explain how President Trump’s statements would provoke any reasonable listener to lawlessness,” Trump’s counsel huffed in a brief opposing the prosecution’s proposed gag order.
Chutkan, though, has seemed unimpressed by Trump’s “Who, me?” posture. During the Oct. 16 hearing on the proposed gag order, the judge compared Trump’s posts attacking Smith to King Henry II’s famous complaint about Archbishop Thomas Becket—“Will no one rid me of this meddlesome priest?”—which led to Becket’s murder at the hands of overeager knights. “If you call certain people ‘thugs’ enough times,” Chutkan asked Trump’s counsel John Lauro, “doesn’t that suggest, Mr. Lauro, that someone should get them off the streets?”
Issuing her gag order on Oct. 17, Chutkan ruled that Trump’s continued attacks “pose a significant and immediate risk” of intimidating witnesses with the threat of harassment and of harassing “attorneys, public servants, and other court staff.” She likewise voiced concern during the hearing about potential attacks on family members of prosecutors—pointing to Trump’s past criticism of Smith’s wife. Similarly, in Engoron’s written order fining Trump $5,000 after Trump’s first violation of the New York gag order, the justice warns, “In the current overheated climate, incendiary untruths can, and in some cases already have, led to physical harm, and worse.” As Engoron later made clear, this risk is not hypothetical: “Since the commencement of this bench trial,” he wrote, “my chambers have been inundated with hundreds of harassing and threatening phone calls, voicemails, emails, letters, and packages.”
Only a day after Chutkan imposed her gag order, Trump announced his intention to appeal. Chutkan briefly stayed and then reinstated the order, which is now once again on hold under an order by the U.S. Court of Appeals for the D.C. Circuit while the appeals court considers Trump’s appeal.
Despite Trump’s complaints that the D.C. order has left him “seriously restricted from campaigning in a free and open manner,” the restrictions imposed by both Chutkan and Engoron leave a relatively broad window for what Trump can still say. (The ACLU also sought to file an amicus brief arguing that Chutkan’s order was vague and overbroad, particularly her use of the word “target”; Chutkan denied the organization’s request to file, as she has with other outside filings in the case.) Engoron’s order, which he described as “very limited,” bars “all parties from posting, emailing or speaking publicly about any members of [Engoron’s] staff”—which opens the door to attacks on, say, Attorney General Letitia James and even Engoron himself. Chutkan’s order, meanwhile, requires that all “interested parties” hold back from:
making any public statements, or directing others to make any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.
Here, Chutkan, like Engoron, has not prevented Trump from continuing to attack her personally. The order also explicitly allows Trump to continue “criticizing the government generally, including the current administration or the Department of Justice,” “asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated,” and attacking “platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.” Trump has already taken plenty of advantage of this expansive loophole while he appeals the order, complaining on Truth Social about Chutkan (a “RADICAL LEFT JUDGE TAKING AWAY MY RIGHT TO FREE SPEECH”), Engoron (a “political hack” who is “doing the dirty work for the Democrat Party”), and Biden (a “CROOKED” president engineering Trump’s prosecution as “ELECTION INTERFERENCE”).
But what might happen if Trump decides to push the limits of what he can say? Despite Trump’s claim that Chutkan’s order is “unthinkable,” both state and federal judges wield broad authority to impose discipline within their courtrooms through use of the contempt power, and have at their disposal a wide range of options for how to exercise that power—from fines to, at the more extreme end of the spectrum, incarceration.
In his initial written order fining Trump $5,000 for the first violation of the gag order, Engoron warned that “future violations … will subject the violator to far more severe sanctions,” including “possibly imprisoning” Trump under New York’s civil contempt statute. The justice later expanded the gag order further after Trump’s counsel Chris Kise harshly criticized Engoron’s chief clerk for passing notes back and forth with the justice, continuing to tangle with the justice even once Engoron had recognized a “continuing objection” by Trump’s team against his communications with his clerk, obviating Kise’s claimed need to continue interrupting. The newly broadened gag order now covers attorneys’ references to “confidential communications” between Engoron and his staff, and the justice warned of “serious sanctions” if Trump’s team disobeyed. Chutkan, for her part, wrote in her ruling lifting the administrative stay on the order that “before concluding that any statement violated the Order, the court would afford the parties an opportunity to provide their positions on the statement’s meaning and permissibility”—meaning that, if the D.C. Circuit allows the gag order to go into effect, any discipline for violating the order would not be a surprise.
Along with the contempt power, there’s another route by which Trump could be held to account for violations in the criminal cases against him. Following his indictment in D.C., he agreed to conditions of pretrial release that require him not to “violate federal, state, or local law”—which would include prohibitions against witness tampering. Last month, Smith’s office also requested that Trump’s conditions of release be modified either to directly require compliance with the gag order or to broaden the conditions’ existing prohibition on Trump’s contacting witnesses to include “indirect messages to witnesses made publicly on social media or in speeches.” (The judge in Roger Stone’s case, the special counsel notes, took a similar approach in modifying Stone’s conditions of release.) In fact, Trump’s bond order in the Fulton County, Georgia, case contains something roughly comparable: a requirement not only that Trump not violate any laws but also that he “perform no act to intimidate” co-defendants or witnesses, including “direct or indirect threat[s]” taking the form of “posts on social media or reposts of posts made by another individual on social media.”
Chutkan denied that request by the special counsel to modify Trump’s pretrial release conditions without prejudice, writing that “granting it is not necessary to effectively enforce the Order at this time.” If she were to take this approach—or if she were to find probable cause that Trump had violated prohibitions on obstruction—she could potentially revoke his conditions of release and order him jailed pretrial.
At the moment, pretrial jailing seems unlikely, as does Engoron’s threat of detention. There’s a ways to go before either judge pulls out this most extreme of options, and Chutkan has already suggested a less dramatic approach: moving up Trump’s trial date from when it’s currently scheduled to begin on March 4. Given that Trump’s main legal strategy seems to be aimed at pushing back a trial as far as possible, that’s a serious threat.
Trump can be impulsive, but he’s proved himself to be shrewd when it comes to positioning himself as a victim of institutions seeking to hold him to account. The pattern is familiar. Trump does something egregious (inviting Russian assistance in the 2016 election, extorting Ukraine, working to overturn the 2020 vote); the other party responds (with an investigation, impeachment, or prosecution); and Trump then complains of being viciously persecuted. Often, aware of this dynamic, the institution in question seems to hang back from using its full power out of a concern over playing into Trump’s hands and giving him fodder for his claims. The fear is that Trump will continue to escalate the situation, decreasing public faith in governing institutions by attacking them as politicized. But the threat of violence encouraged by Trump’s complaints also contributes to the incentives for institutions to hold back.
This is the dynamic in which the courts now find themselves trapped when it comes to the gag orders against Trump, with the additional layer that the subject of confrontation is itself Trump’s propensity for encouraging harassment. In this instance, though, the courts are arguably more equipped to push back against Trump than other institutions have been in the past. Consider Special Counsel Mueller, who has been criticized for soft-pedaling the evidence against Trump in his final report, but whose hands were tied by the Justice Department Office of Legal Counsel’s internal memos forbidding indictment of a sitting president. Today, with Trump as a criminal defendant, the courts have the power to respond to his coded threats of, and incitements to, violence by imposing greater and greater fines, restricting his access to social media, or, yes, putting him behind bars.
The question is whether they want to use those powers. Arguably, they’re already allowing Trump far more leeway than they would another defendant—perhaps out of concerns about potential reversals by higher courts or furthering a cycle of escalation that will only benefit Trump’s story about his own victimhood. There’s even the potential risk of providing Trump with the opportunity to egg on further violence: Imagine the vitriol that Judge Chutkan might face from angry Trump supporters if she were to order Trump confined pretrial. In this sense, Chutkan’s and Engoron’s decisions to exempt themselves from their respective gag orders may be noble, but they could also be potentially dangerous.
Trump will surely keep pushing the limits of what is acceptable over the course of his several upcoming trials. In the meantime, though, his tactic of encouraging harassment has spread widely enough that he doesn’t even need to be directly involved for fear to take hold.
When Georgia released the names of the grand jurors who voted to indict Trump in Fulton County—as state law requires—the jurors immediately faced death threats and doxing from users of far-right pro-Trump internet forums. (The FBI is reportedly investigating.) In September, jurors hearing the case of Jan. 6 defendant Brandon Fellows wrote a note to the judge expressing worry that Fellows, who had been representing himself, might have access to jurors’ personal information—a concern that, Smith writes, “demonstrates the need to protect potential jurors from fear of threats and harassment[.]” Likewise, the federal judge overseeing E. Jean Carroll’s second defamation case against Trump ruled on Nov. 3 that the jurors in the upcoming trial must be kept anonymous, pointing to Trump’s recent violations of Engoron’s gag order. And Judge Friedman of the U.S. District Court for the District of Columbia recently ordered another Jan. 6 defendant, Vitali GossJankowski, to be jailed before trial after GossJankowski doxed FBI agents and prosecutors. Threats against public officials tend not to come from “people in public life,” Friedman said, but from those figures’ “followers.”
Following the 2020 election, a flood of violent threats against election workers led to widespread resignations as people decided that the harassment simply wasn’t worth it. Trump’s attacks on state-level officials and volunteers, as Smith describes in the Jan. 6 indictment, were the first wave of that flood. Now, with the many cases against Trump underway, this crisis may be poised to hit the court system as well.
In federal court, judges and court staff can turn to the U.S. Marshals for protection—though a 2021 Justice Department Office of Inspector General report warned that the service has been stretched thin by a rise in threats against the judiciary. But state courts are typically even more strapped for resources. And it’s not clear who jurors might be able to turn to if they face threats. In his motion for the D.C. Circuit to stay Chutkan’s gag order pending appeal, Trump declares that Smith and his team of prosecutors, along with former government officials who might serve as witnesses, should be fair game for criticism, on the grounds that they’ve chosen to enter into public life. Whatever the merits of that argument, it’s not true of jurors, who have no say whether to be there or not. The difficulties of protecting jurors—along with witnesses and court staff—will only increase as Trump’s trials move forward. How prepared are the courts to grapple with this challenge?