Trump’s Judicial Dictators
Two of the criminal prosecutions of Donald Trump provide sound evidence of the dictatorial nature of some state judges and federal judges The gag orders recently issued by New York state judge Arthur Engoron and Washington, D.C., Federal Judge Tanya Chutkan could be considered models of Lord Acton’s dictum, “Power tends to corrupt, and absolute power corrupts absolutely.”
Chutkan ordered Trump to refrain from making critical statements about the special counsel who is prosecuting the federal case, Jack Smith, and about court members or court personnel. Chutkan stated: “Mr. Trump may still vigorously seek public support as a presidential candidate, debate policies and people related to that candidacy, criticize the current administration and assert his belief that this prosecution is politically motivated. But those critical first amendment freedoms do not allow him to launch a pre-trial smear campaign against participating government staff, their families and foreseeable witnesses.”
For his part, Engoran stated, “Consider this statement a gag order forbidding all parties from posting, emailing or speaking publicly about any of my staff. Failure to abide by this order will result in serious sanctions.”
Engoran was upset because Trump had made some derogatory comments about Engoran’s law clerk.
This past week, Engoran enforced his order by imposing a $5,000 fine against Trump for inadvertently failing to remove the derogatory comments about the law clerk from his website.
Meanwhile, Chutkan has temporarily suspended her gag order pending Trump’s intention to appeal her gag order to the federal Court of Appeals.
The principle of free speech
People who live in a genuinely free society have the right to criticize anyone and anything they want, including judges, law clerks, court secretaries, prosecutors, members of court staffs, witnesses, and the entire judicial process. There is no legitimate prior restraint of what people say about others or about the judicial system or, for that matter, about other parts of the state or federal governments.
Sure, there are libel laws, but they can be used only after a person has spoken or written. They cannot be used to peremptorily prohibit someone from criticizing another person or some aspect of the government.
Free-speech rights are universal
This freedom to criticize judges, prosecutors, court personnel, and witnesses applies to everyone in the world. If someone in Sacramento, California, asserts that some federal judge or federal prosecutor in Miami, Florida, is as crooked as a dog’s hind leg or that some federal or state prosecutors in Oklahoma have been bought and paid for, or that some witness intends to commit perjury, or that some law clerk is politically biased, judges and prosecutors cannot hold the speaker in contempt, criminally prosecute him, or otherwise punish him for his statements. Oh sure, people can sue him for libel or slander, but that is the extent of their remedy.
So, why is Trump being treated differently? The answer is that all too many judges, both state and federal, convince themselves that they wield dictatorial power over anyone who is being criminally prosecuted in their courts. As little dictators, they feel that they wield the power to terminate fundamental rights of people who are hauled into their jurisdiction by virtue of a criminal accusation.
What all too many of these judges forget is the principle of the presumption of innocence. Or they become so jaded over a period of time, especially if they are former prosecutors, that they automatically assume that anyone who is being accused of a crime is probably guilty and, therefore, that it is okay to treat him accordingly.
But the fact is that Donald Trump is an entirely innocent man. He is as innocent as you and I are. And he will retain that innocence until the day that he is convicted of a crime, if he is. That’s what the presumption of innocence means.
Indictments are just accusations
What about the grand-jury indictments that accuse Trump of crimes? They mean nothing — nothing at all. They are simply accusations, nothing more. More often than not, they are issued in a rubber-stamp manner in response to a request by some prosecutor. They are no different, from, say, a legislative impeachment. Indictments and impeachments are just accusations, not evidence.
It is simply through the issuance of a criminal indictment that a person ends up in a state or federal courtroom as an innocent person who is being accused of a crime. Given such, under what authority do these little judicial dictators who happen to preside over these proceedings terminate the free-speech rights of these innocent people? Why don’t these innocent people continue to have the same rights as every other person in society, including the right to criticize the judge, the prosecutor, the judge’s law clerks, the members of the judge’s staff, the judicial system, the overall prosecution, the witnesses, and everyone and everything else?
Rank hypocrisy of judicial dictators
Judges are supposed to protect free-speech rights, not destroy them. I hope that Trump appeals both gag orders. I think he stands a good chance of getting both orders reversed on appeal. But even if he doesn’t, at least he will be exposing the rank hypocrisy of the judicial system, one in which judges purport to protect free speech except when it comes to the realms controlled by their own little judicial dictators.