Trump’s Big Mouth Could Get Him Banned From Using Social Media

Former President Donald Trump’s lawyer Alina Habba recently insisted that Trump’s legal team isn’t stressing the possibility that his vitriolic social media posts might eventually get him tossed into jail for violating one of his two partial gag orders.

“It’s not even something we think about,” Habba told Newsmax onTuesday. “I’m not worried about him.” 

But at least one of Trump’s former legal advisors would beg to differ. Former Trump White House lawyer Ty Cobb said Monday that nothing short of jail can temper Trump’s addiction to lashing out on social media. 

“He’ll keep doing it until he provokes a penalty far greater than he’s suffered so far in the process,” Cobb told CNN. “Ultimately I think he’ll spend a night or a weekend in jail. I think it’ll take that to stop him.” 

The surreal possibility that a former president might be tossed into jail has captured plenty of headlines lately—but it’s hardly the only tool that judges have to ensure compliance. They have plenty of options, including one that’s less dramatic but would still sting Trump: Banning him from social media, including his favorite outlet, Truth Social. 

“It’s definitely plausible” that a judge could order Trump to stop using social media entirely if he keeps up his tirades against prosecutors, potential witnesses or the judges’ staff, said Jill Wine-Banks, a former member of the prosecution team during the Watergate scandal of the 1970s.  

“What else are you going to do to control him?” she asked. “He has no self control. The people have a right to a fair trial, not just him. And if he’s going to taint the jury pool, and threaten witnesses, then there won’t be a fair trial.”

Trump, of course, has shown he’s ready to test the patience of the court: He’s already run afoul of his first gag order on two occasions.

In New York City, where Trump’s battling a $250 million civil lawsuit brought by the New York Attorney General, Judge Arthur Engoron ordered Trump not to criticize members of his staff. 

The judge proceeded to fine Trump a total of $15,000 for two violations. The first was for failing to take down an online post about the judge’s clerk. The second was for ambiguous comments that the judge interpreted as an attack on the same staffer, but which Trump claimed under oath actually referred to his own estranged ex-lawyer, Michael Cohen. Judge Engoron found Trump’s statement not credible. 

Meanwhile, Trump faces a broader restriction in his criminal case over election subversion in Washington D.C. Judge Tanya Chutkan barred him from attacking prosecutors, court staff and all “reasonably foreseeable witnesses”—of which there are plenty. They include some of Trump’s former top aides like former Attorney General William Barr and former White House Chief of Staff Mark Meadows. 

The D.C. gag order was temporarily stayed and then reimposed on Sunday evening—an hour before Trump took a big swing on his Truth Social account at Barr, calling him “Dumb, Weak, Slow Moving, Lethargic, Gutless, and Lazy, [and] a RINO WHO COULDN’T DO THE JOB.” 

A Trump campaign aide said Trump had not yet been told by his lawyers yet that the order had been snapped back into place, according to The Washington Post. 

“If it were a normal defendant, he would have been incarcerated by now,” said Gene Rossi, a former federal prosecutor for the Eastern District of Virginia. “But we’re talking about the former president, with a Secret Service detail and all the accouterments of his candidacy. I doubt a court is going to detain and remand him to jail.”

Jailing an ex-Commander-in-Chief for the first time in U.S. history would take a lot of chutzpah for any judge. Yet a gag order violation can be punished at the judge’s discretion, with penalties running the gamut from fines to jail. 

Judge Chutkan has openly mulled moving Trump’s trial date closer as a possible punishment—an outcome Trump’s attorneys have scrambled to avoid. Rossi suggested home detention might also be an option. 

A blanket social media ban might be overturned by higher courts, and some legal experts are skeptical it would prove legally viable.

“I don’t think that would stand up on appeal,” said Patrick Cotter, a former federal prosecutor in the Eastern District of New York. “It’s one thing to be in contempt of a court order, and it’s another thing to have one of your constitutional rights suspended by a judge.”

But there is a precedent here, relating to one of Trump’s close allies. 

A sweeping social ban was placed on Roger Stone, one of Trump’s oldest political advisors, in 2019 after the judge overseeing Stone’s criminal trial decided Stone hadn’t observed a narrower ban carefully enough.

At first, Judge Amy Berman Jackson ordered Stone to simply not talk about his case in ways that “pose a substantial likelihood of material prejudice,” to ensure that the court could seat an impartial jury.

Eventually, the judge ruled that Stone’s continued posts stepped over the line. She  barred Stone from “making any statement on any subject on Instagram, Twitter, or Facebook.”

Stone was later found guilty at trial on charges of lying to congressional investigators during the probe into the Trump campaign’s ties to Russia. He was ultimately pardoned by Trump before he went to prison. 

The odds that Trump might be banned from social media over a gag order violation are much higher in his D.C. criminal case than in the civil matter in New York, said Catherine Ross, an expert on free speech and gag orders at George Washington University Law School, and author of “A Right to Lie? Presidents, Other Liars, and the First Amendment.” 

Any restriction on Trump’s social media use will still be less restrictive than incarcerating him through the end of his trial, she said. 

“If he had been confined after he was indicted, he would not be able to use social media,” she said. “So his ability to use it right now is kind of a privilege. I think that’s a point that many people miss.”