After a week of privately and publicly fuming at a gag order imposed by a judge in the federal case charging him in attempts to overturn the 2020 election, Trump received a temporary reprieve late Friday.
Judge Tanya S. Chutkan agreed to temporarily lift the gag order that had restricted Trump’s public statements about special counsel Jack Smith, his team and witnesses while she considered a motion from Trump’s lawyers to suspend it entirely while they appeal.
Within 48 hours, Trump issued a new broadside attacking the prosecutor, Trump’s first since the gag had been imposed. On Sunday, he took to his social network Truth Social to attack Smith in the exact terms that the order had prohibited, calling him “Deranged Jack Smith.”
The sequence illustrated the careful dance Trump had engaged in since Chutkan issued her order. He had refrained from immediately and flagrantly violating the gag order while it was in place, even as he railed against it and continued attacking judges and making a host of other comments that, while not technical violations, most defense attorneys would advise against.
Trump was personally furious about the gag order, according to advisers who spoke on the condition of anonymity to relate private discussions. At the same time, advisers said, Trump’s campaign sees political upsides to the gag order, similar to how the indictments helped propel Trump to a commanding polling lead in the Republican primary.
Trump’s campaign has been aggressively fundraising off the gag order. Though it declined to specify how much it raised, Trump’s campaign sent out more than three dozen pitches that mentioned the phrase in the last month.
“Anything that turns up the temperature and becomes controversial is where the online fundraising comes from,” said Brad Parscale, a former Trump campaign manager who now works in online fundraising. “It’s a lot easier to catch fish in a hot lake than a cold lake. All these stories heat up the lake.”
As Trump racked up criminal charges over the summer, his campaign message increasingly focused on fighting the prosecutions that he claims are politicized. In doing so, Trump has worked to position himself alongside his supporters, with one fundraising message last week calling the gag order against him “an attempt to gag American people and cancel out your vote.”
“We couldn’t script this any better from a political standpoint,” one adviser said. “He does best as the victim who is being treated unfairly.”
In a statement, Trump campaign spokesman Steven Cheung said the former president is “a truth-teller and speaks truth to power.”
“He has every right to defend himself from these unlawful witch-hunts by the Biden Department of Justice and prosecutors who are weaponizing the justice system in an unprecedented attempt to interfere in the 2024 election,” he said.
Trump gave two campaign speeches on the day the order was issued, and appeared again Monday in New Hampshire without unambiguously violating the restrictions. Still, if the gag order is reimposed, advisers expect Trump to break it at some point, betting that the judges won’t punish him with jail time. “What are they really going to do to him?” one ally said.
The campaign’s confidence that the gag order will improve Trump’s political standing — and its bet that Chutkan would never dare impose a harsh penalty on a leading Republican candidate for president — helps illustrate the difficult questions in the case as Chutkan weighs to reinstitute or even expand her order.
“In order to safeguard the integrity of these proceedings, it is necessary to impose certain restrictions on public statements by interested parties,” Chutkan wrote in her order imposing the gag.
On Friday, Trump was fined $5,000 for leaving on his campaign website a social media post disparaging a court staffer in his ongoing New York civil fraud trial, in violation of a gag order in that case. That order applies only to court staff; it does not cover the judge or the state attorney general who brought the case — and Trump has continued to criticize them.
During a campaign stop in Concord, N.H., on Monday, Trump repeated his claim, without evidence, that the indictments originated with President Biden and threatened to retaliate if he returns to power.
“These people are dirty players and they go after the political opponents,” he said while filing his paperwork to appear on New Hampshire’s first-in-the-nation primary ballot. “And it’s a two-way street now. It can happen the other way too.”
“We have a judge that’s out of control,” Trump said Monday during a campaign speech in Derry, N.H, “and he’s totally afraid of Peekaboo James,” he added, using a derogatory nickname for New York Attorney General Letitia James.
“I don’t mind being Nelson Mandela,” he said elsewhere in the speech, referring to the South African anti-apartheid leader who spent more than 27 years in prison, “because I’m doing it for a reason.”
Trump has also come close to attacking Chutkan, who like Judge Arthur Engoron, did not include herself in her gag order. “The judge doesn’t like me too much,” he said in Iowa last week. “Her whole life is not liking me.”
Trump has a long history of undermining the independence of the judiciary. In 2016, he suggested the judge overseeing the class-action lawsuit against his for-profit Trump University was biased because of his Mexican ancestry. In 2018, he attacked a ruling against a Trump administration asylum policy as coming from an “Obama judge,” leading to a rare reproach from Chief Justice John G. Roberts Jr.
There have been some discussions among Trump allies of whether the super PAC or other surrogates could step up to mount attacks that Trump himself could be barred from making, should the order remain in place as the campaign proceeds.
But Chutkan’s order is narrow. She specified that it does not prevent Trump from calling his prosecution political or from criticizing President Biden or the Justice Department, leaving Trump room to run in his daily and campaign trail rhetoric.
Trump’s Sunday post calling Smith “deranged,” however, would clearly have run afoul of Chutkan’s order had it still been in effect.
“I cannot imagine any other criminal case in which a defendant is permitted to call the prosecutor ‘deranged’ or ‘a thug,’ and I will not permit it here simply because the defendant is running a political campaign,” the judge said at the Oct. 16 hearing when she initially imposed the gag order.
That post and others from Trump are likely to appear in future court filings from Smith’s team, which has been closely monitoring Trump’s inflammatory comments to argue that they could taint witnesses or jurors. Chutkan has ordered Smith’s team to answer Trump’s challenge to the gag order by Wednesday. Trump’s lawyers then have until Saturday to respond.
A spokesman for Smith declined to comment beyond the court filings in the case.
In the same post, Trump also attacked a potential witness in Smith’s other case against Trump, which would not be covered by Chutkan’s gag order. Australian billionaire Anthony Pratt has testified to prosecutors and is on the list as a potential witness in Smith’s case accusing Trump of mishandling of classified documents after leaving the White House, a person familiar with the matter said. Trump allegedly told Pratt about the capabilities of U.S. submarines. In response to a New York Times article about Pratt this weekend, Trump called him a “red headed weirdo.”
Another post by Trump over the weekend targeted a potential witness in the Jan. 6 case: attorney Sidney Powell, who pleaded guilty in a separate case in Georgia charging her, Trump and 17 others with trying to overturn the 2020 presidential election results in that state. The Washington Post has reported that Powell is one of six people cited as an unindicted co-conspirator in the case.
“MS. POWELL WAS NOT MY ATTORNEY, AND NEVER WAS,” Trump wrote of Powell, who participated in a news conference on behalf of Trump and his campaign and attended a White House meeting in December 2020 about contesting the election results. But he also seemed to praise her for fighting to overturn the 2020 presidential election.
“It helps us long term,” another adviser said of the gag order, “but it doesn’t mean he’s not mad about it.”
Devlin Barrett contributed reporting.
