In a column for the Fresno Bee, the dean of the UC Berkeley School of Law made the case that Donald Trump should not be slapped with a gag order by Judge Tanya Chutkan, but added that, should she feel compelled to do so, she needs to be prepared to have him taken into custody and jailed.
Noted constitutional scholar Erwin Chemerinsky wrote that he is appalled by some of the comments that the former president has made about the prosecutors and investigators who have swamped him with 91 indictments – but he is within his rights to make them under the first Amendment.
As he wrote, "Trump does have free speech rights, however much I loathe what he has to say. Anyone, including him, can criticize a prosecution, a prosecutor and a judge. Of course, no one has the First Amendment right to intimidate witnesses, but there is no indication that his speech has risen to that level."
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With that in mind, he added the caveat, "There is a concern that his incessant criticism of the proceedings will undermine their legitimacy and even lead to violence. But the government, including a court, can never try to bolster its legitimacy by silencing its critics."
Chemerinsky added that, considering the deluge of reporting on every utterance of the former president, it is unlikely – short of direct violent threats Trump might make – that he can influence potential jurors who will be more than aware of his opinions on how the legal system is treating him.
Having said that, the legal expert warned that, should Chutkan decide to say enough is enough and put a gag order in place, she needs to back up her order with the very real threat of jail time if the former president refuses to obey.
"If Chutkan were to impose a gag order on Trump, she must be prepared to enforce it if he violates its terms. In other words, she must be prepared to put him in jail for contempt if he speaks out despite the gag order. It seems likely Trump would do so, whether because he can’t help himself or precisely because he wants to provoke the judge," he wrote.
He then cautioned, "Trump always wants to portray himself as the martyr and victim. A gag order will do this, and putting him in jail for contempt would, in a perverse way, be a reward for him."
You can read his entire opinion piece here.
