When to Speak Up and When to Shut Up

Years of silence by complicit Republicans and the pressing need for a gag order show how free speech is used and abused

Imagine how much safer and how much fairer the upcoming trials of Donald J. Trump might be if a gag order had been imposed on his freedom to attack prosecutors, judges and likely witnesses. Instead, his statements have likely incited violence, intimidated prospective jurors and tainted jury pools. Imagine, too, how different the world might be if elected Republicans had decided to show a little courage and say what they really think about the man who occupied our White House—rather than openly praising him or enabling him by way of silence.

The combination of U.S. District Judge Tanya Chutkan unsealing the gag motion of Special Counsel Jack Smith and his prosecutors on Friday and the behind-the-scenes behavior of Republican senators detailed in the new Mitt Romney biography have gotten me thinking about free speech and the ways in which this right can be used and abused.

The prosecutors’ 19-page filing is never specifically called a “gag” order, which risks being seen as a violation of the First Amendment. Rather, in an effort to “ensure the due administration of justice and a fair and impartial jury,” they call for a “narrow, well defined restriction” and a “narrowly tailored order” to prevent violent threats, disinformation and “prejudicing” of the case involving Trump’s effort to overturn the 2020 election. Their motion, if the judge approves it, would ban Trump from comments “regarding the identity, testimony, or credibility of prospective witnesses” as well as “statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.”

In great detail, the motion “to ensure that extrajudicial statements do not prejudice these proceedings” documents the myriad comments and postings—“on a near-daily basis regarding the citizens of the District of Columbia, the court, prosecutors and prospective witnesses”—which put a fair trial in danger. As they squarely state, the criminal defendant “threatens to undermine the integrity of these proceedings and prejudice the jury pool, in contravention of the ‘undeviating rule’ that in our justice system a jury’s verdict is to ‘be induced only by evidence and argument in open court, and not by any outside influence.’”

The prosecutors note Trump’s August 4 Truth Social post, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” He also claimed that Judge Chutkan is “a fraud dressed up as a judge in Washington, D.C. who is a radical Obama hack” and is a “biased, Trump-hating judge,” and that a fair trial isn’t possible in the nation’s capital because it is “filthy and crime ridden” and its residents are “over 95% anti-Trump.” The prosecutors also cite Trump’s repeated depictions of Jack Smith as “deranged” and his prosecutors as “thugs.”

The prosecutors conclude that “the defendant has a history of inflammatory and misleading statements that he knew or should have known would cause others to harass and harm perceived critics or adversaries.” They go on to say that, since the indictment, “the defendant has deployed misleading and inflammatory statements about this case to undermine confidence in the justice system and prejudice the jury pool.”

With an obvious concern about violating the right of free speech, they repeatedly reference the 1966 Supreme Court case of Sheppard v. Maxwell, that sought to prevent “a carnival atmosphere of unchecked publicity” and protect the judicial process from “prejudicial outside interference.”

Don’t doubt that Trump and his acolytes will continue to try and thwart this motion on free speech grounds. In a rant on Friday night before a Christian women’s group, Trump said, to great applause, “These people are sick. They want to silence me because I will never let them silence you.” After learning of the motion, he posted on his social media site, “They Leak, Lie, & Sue, & they won’t allow me to SPEAK?”

But as much as Trump exploits the First Amendment to incite violence and undermine the judicial system—we’ve seen this play repeated methodically for years—Mitt Romney’s observations about his Republican colleagues offers a sad reminder of their failure to use their First Amendment freedoms to speak up and say what they think and feel.

“Almost without exception, [my Republican colleagues] shared my view of the president,” he told his biographer, McKay Coppins—that is, disgust. Publicly, Coppins writes, “they played their parts as Trump loyalists, often contorting themselves rhetorically to defend the president’s most indefensible behavior. But in private, they ridiculed his ignorance, rolled their eyes at his antics, and made incisive observations about his warped, toddler­like psyche.”

In 2019, after Special Counsel Robert Mueller failed to find conspiracy between the Trump campaign and Russia, Trump was met by the Senate GOP caucus with a standing ovation “fit for a conquering hero,” Romney wrote in his journal. In his subsequent meandering remarks, treated with great respect by this audience, Trump said the GOP would become “the party of health care.” After he left, the senators “burst into laughter.”

While Romney characterized Trump’s 2019 call with Ukraine President Volodymyr Zelensky that led to impeachment “wrong and appalling,” Majority Leader Mitch McConnell would only say in private that “he’s an idiot.” According to Romney, McConnell told him, “You’re lucky. You can say the things that we all think. You’re in a position to say things about him that we all agree with but can’t say.” (McConnell now denies he said this.)

While Trump says anything that comes to his malignant mind, Republicans abdicated their fundamental responsibility to tell the truth. In their refusal, they have left us trapped in a cancerous pit of rising political violence and cruelty. Why? Not out of any moral rectitude; in their self-serving need to hold onto their jobs, they remain willing to forgo the truth and the good of the nation.

Mitt Romney is no hero. It’s one thing for these insights to be published now, quite another thing to have said them when they might have had more impact.

But it is worth recalling that Romney was the only Republican to vote for Trump’s conviction after the Jan. 6 insurrection. That night, during the vote to confirm the electoral college, the Utah senator did speak truthfully.

“What happened here today was an insurrection, incited by the president of the United States,” he said. “Those who choose to continue to support his dangerous gambit by objecting to the results of a legitimate, democratic election will forever be seen as being complicit in an unprecedented attack against our democracy.”

The First Amendment ensures that Congress will not abridge the freedom of speech. But by meeting the ex-president’s abuse of his fundamental right with silence, most have abandoned their duty to use this freedom for the good of the country. Now it’s up to the courts to ensure that justice will be served.

“I caution you and your client to take special care in your public statements in this case,” Judge Chutkan said last month, noting that the right of free speech is “not absolute” in a criminal case. “I will take whatever measures are necessary to protect the integrity of these proceedings.”

Let’s hope she really means it.

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