By Dr. Jennifer Mercieca
Twice impeached and quadruply indicted on 91 felony charges, former president and current presidential candidate Donald Trump can now add “twice gagged” to his list of ignominious accomplishments.
“I can do whatever I want,” Trump said in a speech on October 11, “but I did nothing wrong.” He was talking about the case proceeding against him for stealing and hoarding government documents, but it could have just as easily been a statement about any of the cases against him. Or, really, it could have been a statement about anything he might ever be accused of doing wrong. It’s his life philosophy. Trump can do whatever he wants, and no one can stop him or hold him accountable because whatever he wants to do is, by (his) definition, right, not wrong.
Up to this point in his life, Trump has been able to get away with doing whatever he wants; he has lived his life as an unaccountable leader (a “demagogue”). Now, the demagogue is twice gagged.
So far, judges in two of the four cases proceeding against Trump in courts have been forced to implement limited gag orders against him “in order to safeguard the integrity of these proceedings,” as United States District Judge Tanya S. Chutkan explained in her written order gagging Trump this week. The safeguard measure is necessary, Chutkan said, because Trump’s demagogic attacks against “individuals involved in the judicial process, including potential witnesses, prosecutors, and court staff” posed “sufficiently grave threats” that she was forced by Trump’s actions to protect the court to protect the rule of law.
There was once a time when political pundits could wonder if Trump’s words ought to be taken “literally or seriously,” but that time is long past. The gag order establishes something that rhetoric scholars like me have been saying since 2015: Trump’s threats against the judicial process are both literal and serious threats to the rule of law. The gag orders are a long overdue legal recognition of Trump’s demagoguery.
Trump has used words as a weapon since he launched his presidential campaign. He has used words as a weapon to attack the weak and vulnerable. He has used words as a weapon to attack his political opposition in both parties. He has used words as a weapon to attack reporters and the media. He has used words as a weapon to attack the FBI, DOJ, and Special Counsel. He has used words as a weapon to intimidate and extort foreign allies. He has used words as a weapon to attack legal investigations into his conduct. He has used words as a weapon against impeachment inquiries. He has used words as a weapon against the American election process. He has used words as a weapon against the peaceful transfer of power. He has used words as a weapon against democracy and the government of the United States.
Believing that he can do no wrong, Donald Trump has spent the previous eight years using words as a weapon against any version of truth or reality that he didn’t like. These gag orders recognize both that Trump’s words are a literal threat and that his words are a serious threat to the rule of law in America. It turns out that not only can Trump do wrong, but he can be held accountable for it.
The judges highlighted two of the demagogic strategies that Trump has used since 2015 to attack, coerce, and gain compliance over others: first, ad hominem (Latin for “appeal to the person,” attacking the person instead of their argument). Demagogues use ad hominem to misdirect the audience’s attention away from the central issue of the debate (Trump’s crimes, for example) and attack the character of their opponents. Second, Trump uses argument ad baculum (Latin for “appeal to the stick,” threats of force or intimidation). Demagogues use ad baculum to shift attention away from the central issue of the debate (Trump’s crimes) and to threaten, intimidate, and overwhelm opponents so that they won’t make a case against the demagogue.
Chutkan found that Trump’s personal insults and threats pose a “significant and immediate risk” to the judicial process in two ways: “witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and attorneys, public servants, and other court staff will themselves become targets for threats and harassment.”
Trump’s demagogic attacks have already resulted in harms to the judicial process. “Undisputed testimony cited by the government,” explained Chutkan’s written gag order, “demonstrates that when Defendant [Trump] has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.” Therefore, Chutkan’s responsibility to protect the fairness of the trial required her to gag Trump. “The bottom line is that equal justice under law requires the equal treatment of criminal defendants; Defendant’s presidential candidacy cannot excuse statements that would otherwise intolerably jeopardize these proceedings.”
Trump uses language as a weapon to prevent others from holding him accountable for his words and actions, but now the judges who will ultimately decide his fate have gagged him, then gagged again. In so doing, they have acknowledged that Trump communicates irresponsibly and undemocratically.
Since he’s been gagged, Trump’s emails to supporters have been filled with whining complaints about being gagged, and he’s continued to attack New York Attorney General Letitia James over his civil fraud case. It’s probably just a matter of time before Trump violates the gag rules.
“Donald Trump can call me names. Donald Trump can try to cause distractions. But at the end of the day,” James tweeted in response to Trump’s demagoguery, recentering our attention to the central issue of the debate (Trump’s crimes): “he engaged in persistent fraud, and we will continue to demonstrate that in court.” The courtroom may be the only place a demagogue like Trump is held accountable for his words and actions.