Will Judge Chutkan Gag Trump amid His Escalating Violent Rhetoric?

Donald Trump claims that his words are protected by the First Amendment giving him license to say whatever he wants no matter the consequence. Thus far he appears to be right.

Since his declaration for presidential candidacy – the ultimate legal defense in practice – he is largely left untouched other than an anemic finger wagging recent gag order in his New York civil fraud trial telling him to stop threatening court staff. However, not only are his words not protected by the First Amendment, they also potentially rise to the level of prosecutable crimes and actionable conduct. That is because when it comes to free speech, context is everything.

For example, as the age-old example goes, you aren’t free to falsely yell “fire” in a crowded theater. If that causes a stampede and someone dies, one could be prosecuted for reckless manslaughter, because courts have held that this would constitute “conduct” not “speech” and thus it is not protected. If for example, that same theater is totally empty, there will be no consequence; context is everything.

Donald Trump’s words almost always result in inciting others to act — and he knows it.

As he said on May 10, 2023, in his televised CNN Town Hall, his supporters listen to him “like no one else” and, he uses them like personal weapons. Being admonished or told to stop, only fuels his behavior and he continues to attack, even after observing the horrific consequences of his words. 

Many examples are listed below, but no other example is as clear as when he fired up an armed crowd of supporters on the Ellipse on January 6 and then pointed and shot them toward the Capitol. As so many who stormed the Capitol that day have said, they heard him loud and clear and thought they were doing what he asked them to do.

Trump can no longer claim ignorance that his words cause violence, and as such, he should be held responsible for anything that happens as a result of his violent rhetoric as he will have proverbial blood on his hands.

The Special Counsel said in a recent filing for a gag order, “The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.”

Two examples cited in the motion were a Texas woman inspired to call Judge Chutkan a racist term and threatened to kill her if trump wasn’t re-elected; and, a Utah man who threatened to kill President Biden and made threats to Attorney General Merrick Garland, Manhattan District Attorney Alvin Bragg and New York Attorney General Letitia James on Truth Social.

Trump’s language has always been racist and inflammatory, so this is nothing new. Recall before he was elected President, saying things such as referring to “shithole countries” in Africa and immigrants as violent gang members, or boasting about grabbing women in their private parts. He is also known for using racist references such as “animal” and “rabid” to describe Black district attorneys while also calling them “racist” and also lying about their personal lives.

During Monday's hearing in the Federal January 6^th case, on whether or not to impose a limited gag order on Trump, the Special Counsel will not focus on the threats and violence of Trump’s words. He will instead be focusing on the need to protect the integrity of the trial, the evidence and future jurors, and this will be by design.

The Special Counsel will argue that a limited gag order is needed in order to both ensure that Trump, the presumptive Republican nominee’s free speech is protected, while at the same time the right to a fair trial is protected.

If Trump were any other criminal defendant, however, today’s hearing would not be to determine whether or not to impose a limited gag order; instead, it would be about whether or not to detain him in jail during the pendency of the criminal case due to his flagrant flouting of the rules by his threats, taunts and inciting violence. Trump is being treated differently than every other defendant, but not in the way he claims – this is the opposite of a witch hunt – he is being treated with kid-gloves and allowed to get away with things no other defendant has or would. 

Below are several highlights of Trump’s escalating attacks on judges, prosecutors, witnesses and civilians. They are cruel, overtly racist, verifiably lies and at a minimum reckless; although, one could argue they are deliberately said and intended to incite the very violence that ensues and thus criminal.

September 29th, 2020 – During a debate for president, after refusing to condemn white supremacy he said:

Proud boys: “stand back and stand by”

November 2020 – The day after election day, Trump’s crime spree began when he launched a disinformation campaign that he had won in order to steal the election and intimidate anyone who disagreed with him.

Undaunted, defendant Trump continued to attack people who he knows were already threatened and harassed as a result of his words.

For example:

November 17, 2020 – Defendant fired his director of Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency after he made statements assuring the integrity of the election. Trump attacked him again and one of Trump’s attorneys said he “should be drawn and quartered. Taken out at dawn and shot.”

He and his family received death threats and had to evacuate their home.

December 8^th, 2020 – He filed a lawsuit and put Trump on notice of the threats and harassment, yet Trump continued to attack him anyway.

In 2020, defendant and his co-conspirators spread false accusations of misconduct against Ruby Freeman and Shaye Moss, the Georgia election workers. As a result, they were inundated by racist threats and intimidation. Ten days after a release of a transcript of an interview they gave to the Select Committee, the defendant, despite knowing the threats the election workers had received and the clear falsity of the claims of misconduct, attacked them again and repeated the lies on Truth Social. 

December 2020 – Trump attacked Georgia Lieutenant Governor Geoff Duncan who had been harassed after the defendant inspired his followers to do so by labeling him a “RINO Never Trumper” who was “dumb or corrupt” and urged “we need every great Georgian to call him out.” He reported he received death threats. Despite this, after he was called to testify in the Georgia Grand Jury, the defendant posted that he shouldn’t testify.

December 1, 2020 – A Georgia election official held a widely televised press conference in which he pleaded with the defendant to stop, saying if he didn’t “someone’s going to get hurt, someone’s going to get shot, someone’s going to get killed.”

As outlined in the special counsel’s motion for a limited gag order, in United States v. Trump, several examples are cited by the Special Counsel of horrific attacks on public servants, election workers and others.

Between 11/3/2020 and 1/6/21, he went after numerous individuals whom he targeted who were then subject to threats and harassment:

Defendant tweeted about (redacted) who said there was no evidence of election fraud. After the tweet, there was an increase in the volume and severity of graphic and personal threats against him and his family. Realdonaldtrump/status/132652585175265689"

Pence, during the 2020 election, whose home address was listed on the Internet and whose family was threatened with violence after the defendant and surrogates publicly derogated him for certifying the election.

(Redacted) during the 2020 election, who received threatening communications after Pence certified the election and the defendant issued public posts about them.

(Redacted) who required additional police protection after defendant targeted him on Twitter for rejecting one of defendant’s election challenges.

Jan 6^th 2021 – The insurrection.

March 23, 2023 – Federal Judge Lewis Kaplan adopted anonymous juror measures to protect juror privacy “keeping jurors’ identities secret from the parties upon findings that in the context of the defendant’s repeated attacks on “courts, judges, various law enforcement officials and other public officials, and even individual jurors in other matters.” 

March 24, 2023 – Between 1AM and 2AM, Trump posted on Truth Social threatening “death and destruction” if he was criminally charged in NY after posting an image of himself holding a baseball hat next to Manhattan DA Alvin Bragg’s head. He also called Bragg a “degenerate psychopath that truly hates the USA!” in the same post. 

Hours after the post the DAs office received a threatening letter with white powder.

March 18^th, 2023 – Defendant posted an erroneous claim that he was to be arrested three days later and urged people to protest and “take our nation back” – eerily reminiscent of January 6^th. And then when his allies said to peacefully protest or not at all Trump said “our country is being destroyed and they tell us to be peaceful.”

Trump also called Bragg an animal and “Soros backed animal” and a “degenerate psychopath who hates the USA.

May 10, 2023 – Trump admitted his supporters listen to him “like no one else.”

April 4, 2023 – Manhattan DA indictment for election interference/hush money case.

April 12, 2023 – Bragg was sent a powdery substance with a threatening letter that said “ALVIN: I AM GOING TO KILL YOU !!!!!!!!!!!!!” (one of “several hundred threats”) 

June 8, 2023 – Trump is arrested as part of the Mar-a-Lago documents case.

June 2023 – Trump calls Jack Smith a “thug” and “deranged."

June 12, 2023 – AG James talks about having received numerous death threats as a result of Trump’s racist language, including calling Letitia James a “Racist A.G. Letitia ‘Peakaboo’ James” 

July 5, 2023 – Trump says Jack Smith looks like a “crackhead."

August 2, 2023 – Trump is indicted by Jack Smith for Jan 6th.

August 4, 2023 - The day after he was arraigned, the defendant tweeted “If you go after me, I’m coming after you."

Followed by several posts: Trump attacked Judge Chutkan when he referred to as a“fraud dressed up as a judge in Washington, D.C. who is a radical Obama hack” and a “biased Trump hating judge” and claimed he can’t get a fair trial from her. 

August 5, 2023 – Trump called Mike Pence “liddle” and said that he’s gone to the “dark side” and called him “delusional” and “he was not a very good person.” 

August 7, 2023 – He called Jack Smith “deranged” and accused his “thug prosecutors” of leaking information to the media. 

August 8, 2023 – Talking about Fani Willis, Trump called her a racist and a “rabid partisan” and spread a false story that she had a relationship with a gang member she was prosecuting

August 15, 2023 – Trump is indicted in Georgia. 

August 18, 2023 – Grand jurors in Fulton County received death threats with one online poster saying “these jurors have signed their death warrant by falsely indicting President Trump.”

August 2023 – Trump attacked the DOJ calling it the "Department of Injustice" and calling the Special Counsel’s Office a “team of thugs” and reiterated the lie that the election was “rigged and stollen” (sic) in response to Giuliani’s arrest.

August 28, 2023 – Again, Trump called Jack Smith deranged and his team “thugs” and lied that they were caught going to the White House to indict him. He reiterated that this is a witch hunt, that Joe Biden is “crooked” and that Judge Chutkan is a “Trump hating judge.”

August 17, 2023 – Trump attacked his former Attorney General Bill Barr (also a witness in the January 6^th case), regarding the subject of his testimony. 

Trump blasts GA prosecutors and election “riggers."

September 22, 2023 – Donald Trump threatened General Mark Milley and suggested he be executed. Prosecutors later wrote, "No other criminal defendant would be permitted to issue public statements insinuating that a known witness in his case should be executed; this defendant should not be, either."

Week of of 10/2/23 – Trump escalated his conduct by attacking Judge Engoron’s law clerk during the civil trial posting on his Truth Social account a photo of her and accusing her of being Chuck Schumer’s girlfriend, forcing the judge to issue a gag order.

Also, referring to NY AG Letitia James, Trump said: “You ought to go after this attorney general.”

Trump also said that Judge Engoron should be disbarred and criminally prosecuted.

October 4, 2023 – Fulton County DA Fani Willis reports that she has received 150 personal threats in the past two months, including death threats, ones that use the “n-word” and other racist tropes including calling her a “Jim Crow Democrat whore.” 

October 15, 2023 – The night before his gag order hearing, Trump attacked Judge Chutkan and called her “a highly partisan Obama appointed Judge” and all the prosecutors and judges involved in his various cases “political Hacks and Thugs.”

In addition to a request for a limited gag order, on 10/10/23, the Special Counsel, in another court filling, asked the Court for a prohibition against publicizing jurors’ identities because of his “continued use of social media as a weapon of intimidation in court proceedings.” This is one more way the Special Counsel is seeking to protect the integrity of the trial and protect jurors from Trump’s violence.

At a bare minimum, Judge Chutkan must impose this limited gag order on defendant Trump whose rhetoric has escalated in the face of judicial admonishments without any concern for the carnage left in its wake.

Not only does Trump thumb his nose in the face of judicial authority making a mockery of the justice system, but he is also putting lives at risk.

Someone must stop these calls for violence before someone else gets hurt.

Karen Friedman Agnifilo served as Chief Assistant District Attorney of the Manhattan District Attorney’s Office. She is the co-host of Legal AF podcast on the MeidasTouch Network and a CNN Contributor.