Experts: No judge has been willing to jail Trump for contempt "but that may change" with Chutkan

Trump vowed to defy a potential protective order. He could be hit with more charges or even held in contempt

By Areeba Shah

Staff Writer

Published August 9, 2023 2:50PM (EDT)

Former US President and 2024 presidential hopeful Donald Trump speaks during a campaign rally at Windham High School in Windham, New Hampshire, on August 8, 2023. (JOSEPH PREZIOSO/AFP via Getty Images)
Former US President and 2024 presidential hopeful Donald Trump speaks during a campaign rally at Windham High School in Windham, New Hampshire, on August 8, 2023. (JOSEPH PREZIOSO/AFP via Getty Images)

Donald Trump has continued to attack special counsel Jack Smith and vowed to keep talking about his criminal case over his efforts to overturn the 2020 election even as prosecutors seek a protective order to stop the former president and his team from publicly disclosing evidence.

Referring to Smith as a "thug prosecutor" and a "deranged guy," the ex-president campaigned in New Hampshire on Tuesday, the Associated Press reported. His insults came just days after the Department of Justice asked a judge to approve an order limiting Trump from publicly disclosing evidence in the 2020 election case. 

"Trump's personal attacks on prosecutors, on judges and on their families may play well with the core of his political base, but in the context of the cases against him and the judicial processes he faces, he is not doing himself any favors," James Sample, a professor at Hofstra University's School of Law, told Salon.

The judge presiding over the case has set a hearing regarding the protective order for Friday morning. Following his rally on Tuesday, Trump posted on his social media platform Truth Social, launching an attack on U.S. District Judge Tanya Chutkan.

"If a protective order is imposed, the judge will likely spell out the consequences for its violation in the order itself, and those consequences could include additional charges or even the possibility of being held in contempt," Sample said. 

Judge Chutkan has a number of options if Trump violates the protective order, former federal prosecutor Neama Rahmani and president of Los Angeles-based West Coast Trial Lawyers told Salon. Her options range from fining him to holding him in contempt and even potentially putting him in jail. 

"But is a judge actually going to jail Donald Trump in the middle of a presidential campaign? Probably not," Rahmani said. "Judge Chutkan will probably admonish Trump for violating her protective order, but she won't really do anything about it… So far, no judge has been willing to hold Trump in contempt and jail him, but that may change if he continues to flout Judge Chutkan's orders."

Trump's legal team has contended that the prospective order is too broad and instead requested that the judge put in place a version that is "less restrictive" so that the order doesn't curtail his freedom of speech as protected by the First Amendment, a sentiment Trump reiterated during his Tuesday speech.

"I will address this matter," Trump said at the rally. "They won't infringe upon my First Amendment." 

He said he needs to be able to answer reporters' questions about the case and that failing to do so is "not good for votes" as he seeks to defeat Biden. 

The ex-president also cited the movie "2000 Mules," which alleged widespread voter fraud in the last presidential election. Their claims of election fraud have been repeatedly debunked by election security experts.

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"Trump's First Amendment claims are preposterous," Sample said. "We criminalize all manner of illegal activity. … Witness tampering and making threats against witnesses and jurists jeopardizes not only the safety of individuals, but the integrity of the judicial process. Trump wants the sweet – the protections afforded to criminal defendants – without the bitter, the commensurate obligations required for fair processes. He shouldn't and won't get to have it both ways."

While Trump has First Amendment protections to speak about the case, especially when he is campaigning, that does not give him "free rein" to attack the judge, prosecutors or witnesses, Rahmani added. 

"In the context of this court case, documents aren't speech, so Trump has no First Amendment rights to disseminate documents that are subject to a protective order," he added. "We're in uncharted waters. Never before has a leading candidate for president been under indictment. Trump will be given more freedom to speak publicly about the case than the typical criminal defendant."

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Trump is also facing indictments in both New York state court and federal court in Florida. Additionally, there is a possibility of state charges in Georgia, where he attempted to challenge his loss in the 2020 election.

The former president has denied any wrongdoing in any of the cases against him and instead called for the DOJ to be prosecuted for misconduct. He has repeatedly attacked Smith on social media and referred to the ongoing probe as a witch hunt. 

"Trump is facing one more indictment to be filed any day now – with Georgia prosecutor Fani Willis coming after him," Rahmani said. "Already, the wheels are coming off for Trump and his legal team as they handle three criminal cases and a couple of major civil trials coming up in New York. Trump and his lawyers aren't always on the same page. His legal bills are ballooning, which should be concerning even for a man as wealthy as him. What happens when one more case out of Georgia gets added to the pile?"

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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Donald Trump Furthering Jack Smith January 6 Politics Tanya Chutkan