OPINION: This article may contain commentary which reflects the author's opinion.
A former federal prosecutor took aim at U.S. District Judge Tanya Chutkan in a weekend interview, claiming she must impose penalties on him for violating her gag order.
The former prosecutor, Neama Rahmani, told Newsweek that Chutkan needs to either jail him or hold him in contempt the next time he breaks his gag order after he responded to a federal appeals court that upheld the order late last week but substantially narrowed it, allowing Trump to criticize special counsel Jack Smith, who brought charges of alleged election interference following the November 2020 election.
The appeals court, however, also ruled that Trump cannot criticize Smith’s family, as he has done in the past, nor court officials and staff, after they allegedly received threats from his supporters.
Rahmani, who is now president of the West Coast Trial Lawyers law firm, said it is now time for Chutkan to get serious with Trump over his behavior.
“All of this is meaningless unless Judge Chutkan is actually going to enforce the gag order and revoke Trump’s bond or hold him in contempt. So far, no judge has been willing to do so, aside from minor, meaningless fines,” he said.
If Chutkan were to revoke Trump’s bond, it would mean he would have to spend the time between then and his March trial behind bars, Rahmani noted further.
Trump has been indicted on four counts, accusing him of attempting to overturn the results of the 2020 election leading up to the January 6, 2021, riot at the U.S. Capitol. It is one of four criminal cases Trump is currently facing as he campaigns as the frontrunner for the Republican presidential nomination. He has pleaded not guilty to charges in all cases, consistently denying any wrongdoing and characterizing them as part of a political witch hunt.
Rahmani, who has experience prosecuting significant federal cases before transitioning to private practice, told Newsweek he wasn’t surprised that the appeals court reinstated the gag order, which was initially imposed by Chutkan and temporarily lifted by the appeals court until it issued the ruling on Friday.
“Obviously, there are First Amendment issues at play for a presidential candidate, but Trump has pushed the limits of free expression, and gag orders have been routinely upheld by appellate courts, including the Supreme Court,” Rahmani said.
“I am surprised Special Counsel Jack Smith was excluded from the order, but the court probably reasoned that Smith is a party and knew what he was getting himself into when he charged Trump. You can’t say the same for the trial judge and other court staff,” Rahmani added.
In a statement after Friday’s appellate ruling, the Trump campaign said the court lifted “a huge part of Judge Chutkan’s extraordinarily overbroad gag order.”
In the order, the three-judge panel said judges sought to balance Trump’s First Amendment rights with the proper administration of justice.
The ruling noted that “the former President has also lashed out at government officials closely involved in the criminal proceeding. He has repeatedly labeled the trial judge as ‘biased,’ a ‘fraud’ and a ‘hack’ and has called the prosecutors ‘deranged,’ ‘thugs’ and ‘lunatics’. He likewise has posted about the Special Counsel’s wife and spoke publicly about her at a rally following our administrative stay of the [gag] order.”
The appeals court’s decision narrows Chutkan’s gag order in two respects—Trump is permitted to criticize Smith and case witnesses, provided that his criticism is general and not directed at their roles in the case, Newsweek noted.
“[TRUMP’s] appeal involves the confluence of two paramount constitutional interests: the freedom of speech guaranteed by the First Amendment and the federal courts’ vital Article III duty to ensure the fair and orderly administration of justice in criminal cases,” the judges wrote.
“We do not allow such an order lightly,” Judge Patricia A. Millett wrote for the appeal court panel. “Mr. Trump is a former president and current candidate for the presidency, and there is a strong public interest in what he has to say. But Mr. Trump is also an indicted criminal defendant, and he must stand trial in a courtroom under the same procedures that govern all other criminal defendants. That is what the rule of law means.”
