Dem
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GOP
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On Friday, Judge Tanya Chutkan unsealed a week-old filing asking her to order Donald Trump to shut up. The request, from Special Counsel Jack Smith, states that Trump's past conduct is aimed at intimidating witnesses, some of whom have received various threats already. Smith wants Chutkan to tell Trump to cut it out. So far, she hasn't done that.
If she issues an order, Trump will immediately appeal on the grounds that the First Amendment allows him to say anything he wants about anyone. In effect, he will be arguing that laws about intimidating witnesses by threatening them verbally (as opposed to using a gun, knife, or baseball bat) are unconstitutional. At the very least, the appeal could take a year or more to get to the Supreme Court, with uncertain results.
In the request, Smith points out that past verbal attacks on people have led to serious consequences. For example, after Trump attacked Ruby Freeman, some of his supporters got the message and went after her. Prosecutors are arguing that Trump is uniquely dangerous in a way most other defendants are not because he has the power to rile up millions of supporters to threaten or even attack people who might be called to testify against him and thus make them unwilling to do so. Witness intimidation is a federal crime.
Trump has also attacked the judge herself, but she has a security detail that other people he attacks do not. She has probably been through this before, albeit not on the scale it is now. She is clearly not intimidated by him. She once told Trump's lawyer, John Lauro: "The fact that he's running a political campaign has to yield to the orderly administration of justice."
Lauro also demanded that she recuse herself from the case. Ain't gonna happen.
Other than the issue of the all-but-certain appeal, Chutkan also has to factor in what she would do if she issues the gag order and Trump puts it in his bathroom, on top of the roll of toilet paper. Then what? In a normal case, she would issue an order to federal marshals to arrest him, read him the riot act in her courtroom, and throw him in the clink for some period of time to cool down. But she knows that could trigger violence and might be hesitant to do that, even though it would be perfectly legal. Also, trying to arrest him when he has Secret Service protection might lead to a jurisdictional dispute between federal marshals and the U.S.S.S. However, if she ordered the U.S.S.S. to bring him to her courtroom, they might simply agree. How imprisonment for a U.S.S.S. protectee would work is uncharted territory, but could serve as a dress rehearsal for a potential future imprisonment of a protectee.
A conceivable less-controversial way to get his attention if she issued a gag order and he violated it would be to fine him $1 million and tell him on the next violation it will be $2 million, then $4 million, then $8 million, and so on. Exponential growth adds up pretty fast. Soon you are talking about real money. He wouldn't pay up, of course, but she could issue subpoenas to every bank in New York and Florida asking whether he has an account there, and if so, how much money is in it. Then she could try to seize (or at least freeze) his assets. What might also be possible would be to order one or more county recorders to seize his property and transfer ownership to the federal government to be auctioned off to pay the fines. Everything she did would be appealed, but generally the courts tend to agree that when someone violates a court order, the judge can punish him or her. If an appeals court were to rule that a judge can't punish people for violating court orders, that is pretty much the end of the courts. Punishing Trump with a fine would probably not incite his base as much as imprisoning him. (V)