Did Trump Already Violate His Gag Order?

Former President Donald Trump’s partial gag order barring him from attacking potential witnesses in his D.C. election subversion case was snapped back into place on Sunday evening. A little more than an hour later, Trump posted a diatribe online against a likely witness in the case.

The order specifically bars Trump from going after any “reasonably foreseeable witnesses,” along with the prosecutors and members of federal Judge Tanya Chutkan’s court. Judge Chutkan had temporarily stayed the order while considering Trump’s legal team’s request for a longer pause while they appealed. But a little after 7:00 pm, Chutkan issued a new ruling stating her temporary stay was lifted.

Trump proceeded to post a social media broadside at 8:21 pm against his own former Attorney General Bill Barr—who is a likely witness in Trump’s D.C. criminal case, in which Trump is accused of committing crimes while attempting to reverse his electoral defeat in the 2020 election.

“I called Bill Barr Dumb, Weak, Slow Moving, Lethargic, Gutless, and Lazy, a RINO WHO COULDN’T DO THE JOB. He just didn’t want to be Impeached, which the Radical Left Lunatics were preparing to do,” Trump wrote. “Bill Barr is a LOSER!”

Trump went on to post, a few hours later after midnight, that he had “just learned” about the reinstatement of the gag order, and proceeded to rip the judge and vow to appeal. (Attacking the judge herself is not technically barred by the D.C. gag order, but defense lawyers still tend to advise against that sort of thing in the middle of a criminal trial.)

“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. “This order, according to many legal scholars, is unthinkable!”

The question becomes what Judge Chutkan will think of all this, and whether she will decide he violated her order.

The stakes are high for Trump. While judges may start with warnings, and are likely to handle infractions with a series of escalating punishments, which may involve fines, in theory, a gag order violation could eventually result in jail time. That means that if Trump tramples on the order hard enough, he could conceivably find himself in federal detention before he’s even convicted at trial in any of his four pending criminal proceedings.

There are, however, factors that muddy the water in this instance. Trump’s statement that he “just learned” about the reimposition of the order a few hours later might give his lawyers room to argue that he didn’t know the order was back in place when he made the post about Barr, according to Nick Akerman, a lawyer and former member of the prosecution team during the Watergate scandal of the 1970s.

What’s more, the digital filing system used by the federal judiciary, known as PACER, wasn’t working well on Sunday evening. Journalists following the case immediately understood the nature of the order from its description, but also reported that the full document was unavailable to download for a while. Trump’s team may be able to argue that this technical glitch contributed to a lag in Trump’s understanding.

“It clearly is a violation if he knew” about the order Akerman said. .

“But the issue is: Did he know?,” Akerman continued. “It’s hard to believe he wasn’t called immediately. I saw it in the press as soon as it happened. Nobody could get the full opinion at first, but that doesn’t really make a difference.”

Judge Chutkan hasn’t responded to the incident, and it remains unclear how she’ll react. She has the power to haul Trump’s lawyers into her court to explain exactly when and how he was informed of the order, Akerman noted, and she could call a hearing to probe the matter.

Trump has already been fined twice for violating another limited gag order imposed in a New York City court by Judge Arthur Engoron, who is overseeing Trump’s civil fraud trial brought by New York Attorney General Letitia James.

Judge Engoron’s more-limited order specifically barred criticisms of his staff. The judge twice ruled that Trump broke the rule, after first finding that Trump failed to remove a post about one of the judge’s clerks from his web site, and then ruling that a comment Trump made to reporters outside the courtroom was over the line. The judge slapped Trump with a pair of escalating fines for $5,000 and then $10,000 respectively, but also warned Trump that the punishment would be worse for future violations.