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Trump demands gag order lifted as he is "central to the American fabric" - sadly it worked - for now [1]
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Date: 2023-11-03
Background
On October 16th, Judge Tanya Chutkan of the DC Federal District Court issued a narrow gag order on criminal defendant Donald Trump after he had unleashed yet another tidal wave of invective directed at the court, the prosecution, and potential witnesses. Trump protested.
On October 20th, Chutkan temporarily stayed her gag order to give the appeals court time to hear Trump’s plea.
On October 29th, after another round of late-night threats, including a suggestion that ex-Chair of the Joint Chiefs of Staff Generally Milly be executed, Chutkan reinstated the gag order.
On November 2nd, Trump appealed the reinstated gag order.
On November 3rd, a three-judge panel paused the court order to allow the full court time to consider the case. Oral arguments and briefs are scheduled for November 20th.
The pause
This was about as good as it gets for Trump. But he should keep the champagne on ice as it is likely a short-lived and perhaps even Pyrrhic victory.
A reasonable person might conclude that the panel was stocked with Trump-appointed MAGA weasels, eager to return the favor. The truth was the exact opposite. The panel comprised Judges Patricia Millett, an Obama appointee, Cornelia Pillard, another Obama appointee, and Bradley Garcia, a Biden appointee.
So what gives?
The Founders boasted of an egalitarian society. However, equality was legal only for white men. And in reality, money bought influence and better treatment in the courts. The President did enjoy some legal and customary protections while in office. But other than that, all free Americans were supposed to be treated alike.
That myth has endured. Today, Trump claims that running for high office grants him special treatment. Sadly, the muted and modest response to his incendiary lies and violence-provoking rhetoric has given him what he wants. And now a higher court has granted him at least a half-month license to keep the shitstorm going.
Getting it right
This raises the question, why did these Democratically-appointed judges do it? I suspect it is the same reason the Trump-appointed judges so quickly overturned Judge Aileen Cannon in Florida. The judicial branch is desperate to appear above politics.
Trump is running against Biden. The ex-president is keeping the MAGAs onside with baseless accusations that his legal situation is due to the current President’s determination to blow up his opponent’s campaign. The three judges are aware of this. They know that denying Trump’s request would have turned up the temperature.
Trump would have kept up his attacks — and ultimately forced one of his judges to throw him in jail. By granting Trump his request, this panel can delay the crossing of that Rubicon. After the appeals court ultimately allows the gag order to stand (which is the way to bet) — and Trump then violates it (which is more likely than not) and is thrown in jail (50/50?) — they could point to their bend-over-backward accommodation as simply giving the carbuncle enough rope to hang himself.
The delay is frustrating. How Trump reacts should not matter. What the MAGAs feel about it should not count. But the politics is real. The country is in a judicial terra incognita. We have never had a major presidential candidate criminally indicted once, let alone four times. And so far, every Judge issuing gag orders has minimized their scope. It is not right - but it is prudent.
The appeals court is also mindful that the case will end up at the Supreme Court. And as such, they are being anally attentive to dotting ‘I’s, crossing ’T’s, and giving this criminal defendant every consideration. This approach will also give the Supreme Court less to object to — not that SCOTUS wants Trump to return to the White House.
That dime-store dictator wants all alternative power centers — especially the courts — rendered impotent. (See Netanyahu’s attempt to neuter the Israeli Supreme Court for an example.)
The stay was not due to any merit they found in Trump’s appeal. It is hard to see how they could, as the 35-page submission was long on hyperbolic hysteria and short on legal reasoning. The judges are simply giving the whole court time to consider — for the reasons outlined above.
It is also telling that Trump’s lawyers requested a ruling by November 10th but were instead given at least ten days more than they had asked for. This does not strike me as the action of a Court pre-disposed to find in Trump’s favor. If they were, they would want to give him the good news ASAP.
Trump’s appeal
To give the reader a flavor of the quality of Trump’s case, here are some excerpts from his, for now, successful appeal.
“President Trump’s uniquely powerful voice has been a fixture of American political discourse for eight years, and central to the American fabric for decades” “The Gag Order violates the First Amendment rights of President Trump and over 100 million Americans who listen to him.” “President Trump’s viewpoint and modes of expression resonate powerfully with tens of millions of Americans. The prosecution’s request for a Gag Order bristles with hostility to President Trump’s viewpoint and his relentless criticism of the government—including of the prosecution itself.”
There is not a legal argument in sight. But no doubt the muscular language and fanciful metaphors sound good to the man his lawyers are billing.
My favorite of their arguments is:
“No court in American history has imposed a gag order on a criminal defendant who is actively campaigning for public office—let alone the leading candidate for President of the United States.”
If Trump’s lawyers want to point out that Trump is the first “leading candidate for President” to be an indicted criminal defendant — let alone a four-time indicted candidate — let them do it.
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