OPINION: This article may contain commentary which reflects the author's opinion.
The federal judge overseeing the alleged election subversion case against former President Donald Trump has reversed course on a previous order she issued, much to the chagrin of special counsel Jack Smith, who charged Trump in the case.
U.S. District Judge Tanya Chutkan temporarily froze the gag order she previously issued against the 45th president in her Washington, D.C., courtroom on Friday “to give the parties more time to brief her on the former president’s request to pause the order while his appeal of it plays out,” CNN reported.
The outlet added: “Chutkan also said that the Justice Department has until Wednesday to respond to Trump’s request for a longer pause on the gag order and that Trump would have until the following Saturday to reply to the government’s filing. Trump has already appealed the gag order to the DC Circuit Court of Appeals and in a 33-page filing on Friday, his attorneys urged Chutkan to pause the order while that appeal plays out.”
“Trump has already appealed the gag order to the DC Circuit Court of Appeals and in a 33-page filing on Friday, his attorneys urged Chutkan to pause the order while that appeal plays out,” CNN added.
Chutkan’s pause of her own order came just a few days after a contentious hearing, after which she issued the order, which some observers said was far more broad in scope than several media outlets claimed.
It’s not clear why Chutkan reversed herself and froze her own order, but it could be over concerns that higher federal courts will overturn it — and they should, according to a growing number of opinions, both on the left and right.
Chandra Bozelko, a 2023 Harry Frank Guggenheim Criminal Justice Reporting Fellow at the John Jay College of Criminal Justice, wrote in USA Today that she believes Chutkan’s order is blatantly unconstitutional:
“In what kind of case do you think it would be appropriate for a criminal defendant to call the prosecutor a thug and stay on the streets?” U.S. District Judge Tanya Chutkan asked Donald Trump’s attorney John Lauro on Monday during a hearing on whether the former president’s speech should be restricted.
Lauro didn’t provide the correct answer, which is this: all of them.
She went on to note that criminal defendants often publicly demonstrate as much disdain for prosecutors as prosecutors do for them. “The only difference with Trump’s calling special counsel Jack Smith a thug is that no one was listening when these other defendants insulted their prosecutors,” she wrote.
Bozelko said that prosecutors and defendants “talking smack” is just “part of the game” and that for Chutkan to suggest it doesn’t happen very often “is not only disingenuous on” her part but “it’s also a misunderstanding of the importance of the defendant’s voice in criminal cases – one that could prove unconstitutional.”
She likened that to Chutkan, a former public defender, to not understanding the concept of a legal defense.
“A defendant’s rights may be in tension with the First Amendment rights of the news media, but that’s not what’s happening with the former president. This isn’t even a situation where a lawyer’s speech is restrained,” Bozelko added. “That has happened in the past on occasion, such as the gag order in the trial of the Los Angeles police officers accused of beating Rodney King. Those are the two situations that courts have reviewed in the past, but telling a defendant he can’t speak is unprecedented.”
She concluded: “The constitutional fallout of Chutkan’s partial gag order is yet to be seen; Trump has said that he’ll appeal it before the case is over. Stopping him from speaking is stopping him from defending himself, and that’s something no judge presiding over a criminal case should ever be allowed to do.”
