The Law of Trump - Part I

How Trump opened up new frontiers of First Amendment law

On November 20, 2023, the D.C. Circuit will hear oral argument in Donald Trump’s appeal of an order barring him from making certain categories of statements regarding his forthcoming criminal trial. Trump contends that the order violates the First Amendment; the Special Counsel responds that the order is necessary to prevent witness intimidation, protect trial participants’ safety, and ensure the trial’s integrity.

Trump’s appeal presents difficult questions of first impression. Indeed, not only are these questions novel, but they would not have been conceivable before Trump. This appeal illustrates how Trump requires courts to resolve doctrinal puzzles that differ from any legal questions that have arisen before—in effect, to create a Law of Trump.

This is a long post so I’m splitting it in two. In today’s post, I’ll set forth the facts and walk through some of the intriguing cases in this area. The next post (edit: now online, click the link) will gingerly attempt to apply the case law to the facts at hand.

(This is Dall-E’s reasonably successful effort to combine the concepts of a trial and a circus.)

The Big One

Trump is a criminal defendant in several places, but the D.C. prosecution is the Big One. Trump was charged with corruptly obstructing the certification of the 2020 presidential election results and conspiring to deprive citizens of their constitutional right to vote. Trump’s trial is scheduled to begin on March 4, 2024.

Trump, in his usual understated way, has posted several statements on Truth Social expressing respectful disagreement with certain aspects of this criminal prosecution. Three categories of statements are pertinent to the appeal.

• Trump’s statements about the prosecutors. Trump regularly refers to the prosecution team as “Deranged Jack Smith & his team of Thugs” or similar language. In addition, Trump makes misleading statements about the prosecutors’ activities. For example, Trump stated: “It has just been reported that aides to TRUMP prosecutor, Deranged Jack Smith, met with high officials at the White House just prior to these political SleazeBags Indicating me OVER NOTHING. If this is so, which it is, that means that Biden and his Fascist Thugs knew and APPROVED of this Country dividing Form of Election Interference, despite their insisting that they ‘knew nothing.’ It’s all a BIG LIE, just like Russia, Russia, Russia & not knowing about son’s business dealings. DISMISS CASE!” What actually happened was that a prosecutor from Jack Smith’s office interviewed a career military official at the official’s duty station, which happened to be the White House.

• Trump’s statements about the judge. Trump incessantly rants about the presiding judge, Judge Chutkan. He calls her “a fraud dressed up as a judge in Washington D.C. who is a radical Obama hack,” a “biased, Trump-hating judge,” and so on. Sometimes he posts about Jack Smith and Judge Chutkan at the same time, e.g., “Deranged Jack Smith is going before his number one draft pick, the Judge of his ‘dreams’ (WHO MUST BE RECUSED!), in an attempt to take away my FIRST AMENDMENT RIGHTS - This, despite the fact that he, the DOJ, and his many Thug prosecutors, are illegally leaking, everything and anything, to the Fake News Media!!!”

• Trump’s statements about witnesses.

  • Several high-level officials in the Trump administration, such as Trump’s former Vice President, Mike Pence, and his former Chief of Staff, Mark Meadows, are potential witnesses against Trump. These officials used to be Trump’s staunch allies, but the bloom on those friendships has left the rose.

  • Sample statement from Trump: “WOW, it’s finally happened! Liddle’ Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him V.P., has gone to the Dark Side. I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was ‘too honest.’ He’s delusional, and now he wants to show he’s a tough guy.”

  • And another: “I don’t think Mark Meadows would lie about the Rigged and Stollen 2020 Presidential Election merely for getting IMMUNITY against Prosecution (PERSECUTION!) by Deranged Prosecutor, Jack Smith … Some people would make that deal, but they are weaklings and cowards, and so bad for the future our Failing Nation. I don’t think that Mark Meadows is one of them, but who really knows? MAKE AMERICA GREAT AGAIN!!!”

  • Trump also posted the following statement on Truth Social: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” (In his D.C. Circuit brief, Trump’s lawyer amusingly says that this statement is a reference to “special interest groups and Super PACs.”)

Eventually, the Special Counsel decided he’d had enough, and moved the district court for an order restricting Trump’s statements. The district court partially granted the Special Counsel’s motion, issuing an order that was narrower than what the Special Counsel had requested. The court found that Trump’s statements “pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves became targets for threats and harassment.” Based on that finding, the court issued the following order:

It is hereby ORDERED that: All interested parties in this matter, including the parties and their counsel, are prohibited 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.

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.

Trump appealed to the D.C. Circuit, taking the view that the district court’s order violates the First Amendment. The D.C. Circuit issued a temporary stay order, which remains in place. Trump has taken advantage of the D.C. Circuit’s stay, opining, for instance, that “Deranged Jack Smith” and others “will end up, because of their suffering from a horrible disease, TRUMP DERANGEMENT SYNDROME (TDS!), in a Mental Institution by the time my next term as President is successfully completed.”

Sam Sheppard: surgeon, professional wrestler, martyr

So does the district court’s order violate the First Amendment?

If Trump wasn’t a criminal defendant, his statements would be protected by the First Amendment. The First Amendment protects advocacy—even advocacy of using force or breaking the law—except “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam). The words must be both “intended to produce” and “likely to produce” “imminent disorder”; the words cannot be punished merely because they have a “tendency to lead to violence.” Hess v. Indiana, 414 U.S. 105, 109 (1973). Statements that Jack Smith is “deranged,” or that Judge Chutkan is a “fraud,” do not meet that threshold. Indeed, Trump supporters make similar statements on Twitter/X every day, and I don’t think anyone doubts those statements are constitutionally protected.

Likewise, if Trump’s statements didn’t pertain to trial participants, I think the Brandenburg standard would apply even though he’s a criminal defendant. The First Amendment protects Trump’s right to rage about Crooked Hillary to his heart’s content. The question is whether the district court has leeway to restrict a criminal defendant’s pretrial statements about the trial that don’t rise to the level of incitement under Brandenburg.

There’s no Supreme Court case that decides this question. The Special Counsel relies on Sheppard v. Maxwell, 384 U.S. 333 (1966), but Sheppard is not quite on point.

Sheppard is the Sam Sheppard case, an extremely famous case. For the non-history-buffs in the audience, Sam Sheppard was a neurosurgeon who was accused, and quickly convicted, of murdering his wife in 1954. The case is quite similar to the Scott Peterson case—the husband’s conviction was based largely on his extremely suspicious conduct before and after his wife’s death, rather than any physical evidence directly linking the husband to the murder. For reasons I don’t fully understand, the case triggered an extreme media frenzy. It probably got more media attention than the Scott Peterson case—I’d put it somewhere in between Scott Peterson and O.J. Simpson.

Speaking of O.J. Simpson, F. Lee Bailey took over as Sheppard’s lawyer and pursued a federal habeas corpus petition. He argued the case in the Supreme Court at the age of 34 and won by an 8-1 vote. Lord knows how Bailey was able to get this case, but it made him famous. You can listen to the oral argument here—he is excellent, in my opinion.

The Supreme Court reversed Sheppard’s conviction on the basis that the trial was a circus, denying Sheppard of due process. After serving ten years in prison, Sheppard was released, retried and acquitted. He became a celebrity; rumor has it that he inspired the character of Dr. Richard Kimble in The Fugitive.

After his release in 1964, Sheppard had an eventful few years:

• He married, and then divorced, Joseph Goebbels’ sister-in-law.

• He returned to his surgical practice but, within months, accidentally killed two patients, and then resigned.

• He decided to switch careers to professional wrestling, billing himself as “Killer” Sam Sheppard. A heroic Wikipedia editor reports that one of Sam Sheppard’s wrestling moves inspired a move of Mick Foley/Mankind, an even more famous wrestler.

• In 1970, six years after his release, the 46-year-old Sheppard died of chronic alcoholism.

Sheppard’s son later sued Ohio for having wrongfully incarcerated his father, but Ohio won. Basically, the jury thought Sheppard was guilty, and he probably was. Maybe the evidence wasn’t quite strong enough to meet the beyond-a-reasonable-doubt standard, but his alibi made absolutely no sense and he was a really sketchy guy.

Anyway, the Supreme Court case is a fascinating read. It portrays Sheppard’s trial as a media circus, in which jurors were constantly exposed to, and presumably influenced by, media coverage. Here’s one excerpt:

The jury viewed the scene of the murder on the first day of the trial. Hundreds of reporters, cameramen and onlookers were there, and one representative of the news media was permitted to accompany the jury while it inspected the Sheppard home. The time of the jury’s visit was revealed so far in advance that one of the newspapers was able to rent a helicopter and fly over the house taking pictures of the jurors on their tour.

And one more:

The courtroom remained crowded to capacity with representatives of news media. Their movement in and out of the courtroom often caused so much confusion that, despite the loud-speaker system installed in the courtroom, it was difficult for the witnesses and counsel to be heard. Furthermore, the reporters clustered within the bar of the small courtroom made confidential talk among Sheppard and his counsel almost impossible during the proceedings. They frequently had to leave the courtroom to obtain privacy. And many times when counsel wished to raise a point with the judge out of the hearing of the jury it was necessary to move to the judge's chambers. Even then, news media representatives so packed the judge's anteroom that counsel could hardly return from the chambers to the courtroom. The reporters vied with each other to find out what counsel and the judge had discussed, and often these matters later appeared in newspapers accessible to the jury.

The Supreme Court held that “courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.” It concluded that the “state trial judge did not fulfill his duty to protect Sheppard from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom.”

Sheppard permits, but does not compel, the conclusion that the district court had the authority to enter the gag order against Trump. Sheppard is distinguishable in two primary respects. First, Sheppard holds that courts may take measures pre-trial to ensure a fair trial for the accused. Sheppard does not endorse suppressing the accused’s speech over his own objections.

Second, Sheppard’s primary concern was that the jury was exposed to prejudicial material that was not in evidence:

Nor is there doubt that this deluge of publicity reached at least some of the jury. On the only occasion that the jury was queried, two jurors admitted in open court to hearing the highly inflammatory charge that a prison inmate claimed Sheppard as the father of her illegitimate child. Despite the extent and nature of the publicity to which the jury was exposed during trial, the judge refused defense counsel's other requests that the jurors be asked whether they had read or heard specific prejudicial comment about the case, including the incidents we have previously summarized. In these circumstances, we can assume that some of this material reached members of the jury.

Relying on this reasoning, the Special Counsel asked Judge Chutkan to restrict Trump’s speech on the theory that it would prejudice the jury pool. Judge Chutkan declined to rely on this rationale, and I believe she was correct. Referring to the Special Counsel as “deranged” or to Mike Pence as “delusional” is nothing like publicly disclosing facts not in evidence in the hope that the jury sees them. I suppose it’s possible that some juror, somewhere, might see these statements and feel sympathetic towards Trump. But the same thing might happen if the juror sees statements from Trump passionately declaring his innocence—which I think are protected under the First Amendment, and which Judge Chutkan properly excluded from her order. Ultimately, generalized concerns that jurors might read and be swayed by Trump’s statements are a weak basis for a gag order.

The Special Counsel also relies on Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), but that case is similarly off-point. In that case, Dominic P. Gentile—still a practicing lawyer in Nevada and appropriately a member of the First Amendment Lawyers Association—was reprimanded by the Nevada courts for holding a press conference publicly proclaiming the innocence of his client, an accused criminal defendant. In a confusing 4-1-4 decision in which Justice Kennedy and Justice Rehnquist each wrote portions of the opinion of the Court, the Supreme Court reversed the reprimand order.

In Justice Rehnquist’s majority opinion, the Court rejected the argument that a state must “demonstrate a ‘clear and present danger’ of ‘actual prejudice or an imminent threat’ before any discipline may be imposed on a lawyer who initiates a press conference such as occurred here.” Instead, the Court held that a state could limit speech based on a lesser showing: the speech must merely have “a substantial likelihood of materially prejudicing that proceeding.” The Court emphasized that “the speech of those participating before the courts could be limited,” drawing a “distinction between participants in the litigation and strangers to it.” (Justice Kennedy’s majority opinion held that Nevada’s restriction was unconstitutionally vague.)

Justice Rehnquist’s opinion distinguishing between trial participants and trial non-participants lends some support to the district court’s order restricting Trump’s speech. In two respects, however, Gentile is distinguishable. First, Justice Rehnquist’s primary rationale was that Gentile was a lawyer, and that lawyers may be regulated by members of the bar. For example, he says: “In the United States, the courts have historically regulated admission to the practice of law before them and exercised the authority to discipline and ultimately to disbar lawyers whose conduct departed from prescribed standards.” Trump, despite his impressive familiarity with the justice system, is not a lawyer. Second, as in Sheppard, Justice Rehnquist was concerned with jury prejudice: “The outcome of a criminal trial is to be decided by impartial jurors, who know as little as possible of the case, based on material admitted into evidence before them in a court proceeding. Extrajudicial comments on, or discussion of, evidence which might never be admitted at trial and ex parte statements by counsel giving their version of the facts obviously threaten to undermine this basic tenet.” As noted above, that shouldn’t be, and in fact was not, the basis of the order restricting Trump’s speech.

Circuit split!

In the absence of Supreme Court case law resolving the legal standard governing gag orders against criminal defendants, it is natural to look at lower court opinions—in which we find an honest-to-goodness circuit split. Circuit Split Hunters, take note!

On one side of the ledger is United States v. Ford, 830 F.2d 596 (6th Cir. 1987). Ford was written by Judge Gilbert Merritt, a classic liberal lion who would be rolling over in his grave if he knew that his judicial opinion was being cited by Trump. After the Reagan Justice Department indicted Harold Ford, a Democratic Congressman from Memphis, on corruption charges, a federal court entered a gag order restricting Ford’s public statements in his own defense. The Sixth Circuit held that the gag order was unconstitutional with some sonorous language:

It is true that permitting an indicted defendant like Ford to defend himself publicly may result in overall publicity that is somewhat more favorable to the defendant than would occur when all participants are silenced. This does not result in an "unfair" trial for the government, however. … To the extent that publicity is a disadvantage for the government, the government must tolerate it. The government is our servant, not our master.

Evidently Judge Merritt has never been to the DMV! The Sixth Circuit rejected the view that Sheppard supports a more lenient standard of review for gag orders: “No restraint on the defendant’s speech was at issue … We see no legitimate reasons for a lower threshold standard for individuals, including defendants, seeking to express themselves outside of court than for the press.”

The Ford case involved some interesting twists and turns too. After a Memphis jury hung on racial lines—the 8 Black jurors voted to acquit, the 4 white jurors voted to convict—the judge decided that a Memphis jury couldn’t be fair and decided that jurors from rural, white counties would be bussed to Memphis instead. Bill Clinton was eventually elected and his acting AG asked the district court to seat jurors from Memphis, but the judge said no. A jury consisting of 11 white jurors and 1 Black juror heard the case and … quickly acquitted Ford on all counts. Ford stayed in Congress, and eventually passed his seat down to his son.

On the other side of the split is United States v. Brown, 218 F.3d 415 (5th Cir. 2000). Brown was Jim Brown, the third consecutive Louisiana Insurance Commissioner to serve time in federal prison. Brown was charged alongside former governor Edwin Edwards, perhaps the single most corrupt politician of all time, with the usual fraud, conspiracy, witness tampering, etc. But they did pretty well. Edwards was acquitted on all counts (his lengthy prison sentence from the same period was based on an unrelated bribery conviction). Brown beat the rap except for the lying-to-the-FBI charge, kind of an unfair charge—can you really expect a Louisiana politician to tell the truth to the FBI? Happily for him, he served a shorter sentence than his two predecessors.

Now in his 80s, Brown publishes a blog. Among his recent posts is one entitled “Gag Orders Against Trump Should Be Unconstitutional,” which offers the following commentary:

In the past, Louisiana federal courts have not been immune from gag orders demanded by prosecutors. Some judges have even undertaken their own initiatives to impose them. One of the worst abusers of imposing gag orders against defendants was federal judge Frank Polozola, who presided out of the middle district of Louisiana.  He would impose gag orders without even having a hearing.  Here’s what often happens. The prosecution can file charge after charge, and motion at the motion, making all types of outrageous allegations that are front page news, yet the gagged defendant can say nothing. That’s just outrageous and un-American. Thankfully, recent Louisiana federal judges have ignored such an unconstitutional approach.

Amusingly, the post omits that Judge Polozola issued a gag order against Brown himself, and the Fifth Circuit’s affirmance of that very gag order is the leading authority supporting the gag order of Trump. Judge Polozola later recused himself, as did all other judges in the Middle District of Louisiana, apparently because of a concern that the U.S. Attorney would be a trial witness … Louisiana politics is exhausting. Speaking of the Fifth Circuit, the gag order appeal was argued by Stephen Higginson, now on the Fifth Circuit, and Brown’s trial was transferred to Judge Clement, now also on the Fifth Circuit.

Anyway, the Brown case holds that a district court may “impose an appropriate gag order on parties and/or their lawyers if it determines that extrajudicial commentary by those individuals would present a ‘substantial likelihood’ of prejudicing the court's ability to conduct a fair trial.” The court upholds a gag order aimed at trial participants, including the defendants themselves. Like the Sheppard and Gentile cases, however, the court’s primary concern was that the parties would try the case in the press:

During the period in which the district court vacated the gag order so that Brown could pursue his re-election campaign, some of the defendants released to the press recordings and transcripts of recordings of wiretapped conversations, which had previously been subject to the order, and participated in ‘extensive interviews’ while playing the recordings. … A lawyer for the government then suggested that he would match any attempts by the defendants to gain an upper hand in the media coverage of the case.

This doesn’t really speak to whether a gag order against a criminal defendant is justifiable on the distinct ground that extra-judicial statements may cause witnesses to be harassed. The Trump gag order really presents a question of first impression.

That’s it for Part I! Part II will finally get to the point and discuss the Trump order itself.