The written order from Judge Tanya Chutkan imposing a gag order on President Trump could emerge as not only a legal watershed but also a critical document in respect of the 2024 presidential campaign. 

The arrival of this document on the docket clarifies the rules with respect to Mr. Trump’s January 6 prosecution. Possibly proceeding with one eye on an appeal that Mr. Trump has promised to mount, Judge Chutkan writes that the “First Amendment does not override” a jurist’s obligation to protect her trial from “outside interference.” 

Turning to a court higher than her own, the judge cites the Nine for the proposition that “although litigants do not surrender their First Amendment rights at the courthouse door, those rights may be subordinated to other interests that arise in this setting.” She is in pursuit, she writes, of “calmness and solemnity.”

Mr. Trump argues that the standard mechanisms designed to ensure fairness at trial —  jury sequestration, instructions, the interrogatory process known as voir dire — are sufficient safeguards, even against the former president’s caustic commentary on social media. He maintains that the request for further restriction is an effort to bend the 2024 election to President Biden. 

Judge Chutkan, though, decides that standard operating procedures  are “sufficient to remedy only some of the potential prejudices” posed by Mr. Trump’s habit of attacking legal and political opponents. She writes that when Mr. Trump “has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.”

The reference here is perhaps autobiographical. In August, a woman was arrested for leaving a voicemail at Judge Chutkan’s chambers with the message, “You are in our sights, we want to kill you.” An FBI affidavit notes that the woman “threatened to kill anyone who went after” Mr. Trump. The former president is not accused of ordering her to make that threat.

Judge Chutkan chastises Mr. Trump for addressing “national audiences using language communicating not merely that he believes the process to be illegitimate, but also that particular individuals involved in it are liars, or ‘thugs,’ or deserve death.” Those statements, she reckons, pose a “significant and immediate risk” of intimidating the jury pool.

Displaying a sensitivity to the digital demesne, Judge Chutkan notes that intimidation is “largely irreversible in the age of the Internet; once an individual is publicly targeted, even revoking the offending statement may not abate the subsequent threats.” It is necessary, she notes, “to impose certain restrictions on public statements by interested parties,” meaning Mr. Trump and Special Counsel Jack Smith. 

The jurist rejects what she describes as Mr. Trump’s position that “no limits may be placed on” his speech because he is engaged in a political campaign as “untenable.” She finds that the “bottom line is that equal justice under law requires the equal treatment of criminal defendants” and that Mr. Trump’s “presidential candidacy cannot excuse statements that would otherwise intolerably jeopardize these proceedings.”

On this point, the Wall Street Journal, in an important editorial, writes that “there also has never been a criminal defendant like Mr. Trump, who remains, in spite of it all, the leading political opponent of the sitting President.” During the Monday hearing, though, Judge Chutkan opined that Mr. Trump’s “presidential candidacy does not give him carte blanche to vilify public servants.” 

Despite the gag order, it appears that Judge Chutkan is attuned to some of Mr. Trump’s campaign classics. Mr. Trump is not restricted from “criticizing the government generally, including the current administration,” or from asserting that he “is innocent of the charges against him, or that his prosecution is politically motivated.” 

Mr. Trump has called Judge Chutkan’s order “unconstitutional.” The case could eventually reach the Supreme Court, which has countenanced gag orders, begrudgingly, as a carve out from the prohibition of “prior restraint” on protected speech.