Every Time They Do This, Trump Goes Up In The Polls

Yesterday I suggested Trump is following a Chicago Seven strategy of baiting his trial judges into overreacting, committing reversible errors, and allowing themselves to be characterized as political hacks in the public narrative. This strategy is succeeding.

A federal judge on Sunday reinstated a gag order she imposed on Donald Trump in the Washington case accusing him of trying to overturn his 2020 election defeat, denying his bid for a stay pending appeal.

The order prohibited Trump from targeting the special counsel prosecuting his case or witnesses who might be called to testify about his efforts to upend his election loss.

US District Judge Tanya Chutkan imposed the gag order at the Justice Department’s request.

She temporarily lifted it on Oct. 20 after Trump’s lawyers appealed.

And she reversed that decision on Sunday evening, according to the court’s docket.

A member of the former Obama administration outlined the thinking that likely drove Judge Chutkan's change of direction:

Former Acting Solicitor General Neal Katyal said Sunday on MSNBC’s “Inside” that it was likely former President Donald Trump would be jailed for violating a gag order.

Katyal said, “There are two different gag orders. One, Trump has already violated, the one in New York state, in which he has been now find twice. And then there’s a swarm that you’re talking about the federal level with Jack Smith. And that one has been put on pause.”

He continued, “I think Donald Trump has made the best case of anyone. He is witnessing for why you need the gag order in effect. Because the moment that gag order was put on pause, he started developing and attacking people left and right.”

Katyal added, “So I think that there is no doubt in my mind that there will be a gag order imposed on Donald Trump. And there also is no doubt in my mind that he is going to violate it repeatedly. Repeatedly to the point where a judge is going to have to confront the ultimate question, are we going to put the former president in jail? and i think there is only one answer to that.”

Anchor Jen Psaki said, “What is your answer?”

Katyal said, “Which is you have to. If he continues this behavior, no other litigant in this country would ever be able to do what he is doing. Judges, I don’t care what your politics are, the one thing you understand when you put out that robe is that it is about the legitimacy of the court and about the judicial process.”

But the Chicago Seven case makes it plain that there are limits to the legitimacy of the court. Judge Hoffman, if we follow Katyal's logic, had no choice but to have Bobby Seale bound and gagged in the courtroom and impose draconian sentences on the defendants and their counsel for contempt -- that is, he had no choice until the higher court reversed him. And it's likely that Judge Chutkan's order will eventually be reversed. In an amicus brief, the American Civil Liberties Union argued,

Chutkan imposed a limited gag order on Trump earlier this month that forbids him from targeting any criticism at Special Counsel Jack Smith, court staff, or witnesses on his case that involves allegations related to the Jan. 6 riots.

But the ACLU argued the term "targeting" was unconstitutionally vague.

“The First Amendment rights of the accused require any court order restraining their speech to be both clearly defined and narrowly framed,” the group argued. "The order’s prohibition on speech that “targets” certain named and unnamed individuals is neither.

"Reading the order, Defendant cannot possibly know what he is permitted to say, and what he is not," it added.

It isn't hard to surmise that Trump is almost begging either Judge Chutkan or Judge Engoron to jail him for contempt -- over the weekend, he called Judge Engoron a "nut job", “Trump hating,” and “unhinged.” Regarding Judge Chutkan's reinstatement of her order, he posted As of this morning, he added,

“I have just learned that the very Biased, Trump Hating Judge in D.C., who should have RECUSED herself due to her blatant and open loathing of your favorite President, ME, has reimposed a GAG ORDER which will put me at a disadvantage against my prosecutorial and political opponents,” Trump wrote on Truth Social Monday morning. “This order, according to many legal scholars, is unthinkable! It illegally and unconstitutionally takes away my First Amendment Right of Free Speech, in the middle of my campaign for President, where I am leading against BOTH Parties in the Polls.”

The problem for the judges is that anything that happens now is going to become news, and at that point, it's out of their control and into Trump's field of expertise -- it's generally understood that Trump is a master at leveraging media coverage into free publicity. A judge who orders Trump to jail is going to open the door to unanticipated consequences for the whole process. I don't think either Judge Engoron or Judge Chutkan is remotely up to the task here, any more than Judge Hoffman was in Chicago.