As noted, Judge Tanya Chutkan lifted the stay on the gag she imposed on Donald Trump. In her opinion lifting the stay, Chutkan laid out how Trump’s garden variety attacks on Joe Biden were fair game under the gag, but his specific attack on Mark Meadows in conjunction with the Jack Smith prosecution was not.
Two of Defendant’s social media posts since the Order’s entry illustrate the comprehensible difference between the statements it permits and those it proscribes. First, on October 20, 2023—after the Order was entered, but before it was administratively stayed— Defendant stated:
Does anyone notice that the Election Rigging Biden Administration never goes after the Riggers, but only after those that want to catch and expose the Rigging dogs. Massive information and 100% evidence will be made available during the Corrupt Trials started by our Political Opponent. We will never let 2020 happen again. Look at the result, OUR COUNTRY IS BEING DESTROYED. MAGA!!!3
This statement asserts that Defendant is innocent, that his prosecution is politically motivated, and that the Biden administration is corrupt. It does not violate the Order’s prohibition of “targeting” certain individuals; in fact, the Order expressly permits such assertions. Order at 3.
By contrast, on October 24, 2023—after the Order was administratively stayed— Defendant stated:
I don’t think Mark Meadows would lie about the Rigged and Stollen 2020 Presidential Election merely for getting IMMUNITY against Prosecution (PERSECUTION!) by Deranged Prosecutor, Jack Smith. BUT, when you really think about it, after being hounded like a dog for three years, told you’ll be going to jail for the rest of your life, your money and your family will be forever gone, and we’re not at all interested in exposing those that did the RIGGING — If you say BAD THINGS about that terrible “MONSTER,” DONALD J. TRUMP, we won’t put you in prison, you can keep your family and your wealth, and, perhaps, if you can make up some really horrible “STUFF” a out him, we may very well erect a statue of you in the middle of our decaying and now very violent Capital, Washington, D.C. Some people would make that deal, but they are weaklings and cowards, and so bad for the future our Failing Nation. I don’t think that Mark Meadows is one of them, but who really knows? MAKE AMERICA GREAT AGAIN!!!4
This statement would almost certainly violate the Order under any reasonable definition of “targeting.”5 Indeed, Defendant appears to concede as much, Reply in Support of Motion to Stay, ECF No. 123, at 10 n.3 (“If the Gag order had been in effect, President Trump would have been unable to [make the statement].”)—and for good reason. The statement singles out a foreseeable witness for purposes of characterizing his potentially unfavorable testimony as a “lie” “mad[e] up” to secure immunity, and it attacks him as a “weakling and coward” if he provides that unfavorable testimony—an attack that could readily be interpreted as an attempt to influence or prevent the witness’s participation in this case. The plain distinctions between this statement and the prior one—apparent to the court and both parties—demonstrate that far from being arbitrary or standardless, the Order’s prohibition on “targeting” statements can be straightforwardly understood and applied.
5 Because of the administrative stay on the Order, this statement is not before the court. Before concluding that any statement violated the Order, the court would afford the parties an opportunity to provide their positions on the statement’s meaning and permissibility.
Since Chutkan lifted the stay, Trump has made six attacks on his failing social media platform, four complaining that the prosecution against him wasn’t initiated three years ago (under Bill Barr?!?! at a time when Bill Barr was still corruptly shutting down prosecutions of Trump and his people?!?!?!), before the conspiracies charged against him started, and two attacking Judge Chutkan.
All of these attacks are perfectly permissible under the gag.
While Chutkan’s staffers are covered by the gag, she specifically excluded Joe Biden and herself from the gag.
Because Chutkan is excluded from the gag, I thought it worth reviewing the specific circumstances of the threat Abigail Jo Shry made against Judge Chutkan, which as I noted first got raised in the government’s opposition to staying the gag.
Such risks are far from speculative here, the Court found, given uncontradicted facts submitted by the Government showing that when the defendant “has singled out certain people in public statements in the past,” it has “led to them being threatened and harassed.” ECF No. 103 at 66-67.1
1 Shortly after being assigned to the case, the Court itself received a racist death threat explicitly tied to the Court’s role in presiding over the defendant’s case. See United States v. Shry, No. 4:23-cr-413, ECF No. 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023) (caller stating, among other things, “‘If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, b***h. . . . You will be targeted personally, publicly, your family, all of it.’”). This incident, like many of the others the Government cited, was widely publicized and surely well known to the defendant.
That is, it first got raised explicitly in the opposition to lift the stay.
Not stated anywhere in this filing is that when DOJ said Shry made her threat against Judge Chutkan and Sheila Jackson Lee “shortly after” Judge Chutkan was assigned to the case, they mean Shry made the threat on August 5, one day after Trump issued his, “if you come after me” threat, which was included in the initial motion for a gag (the consideration of which, remember, John Lauro succeeded in stalling for ten days).
Trump followed that attack with more, including several almost identical to the ones he used overnight, except that they swapped out Jack Smith (who is covered under the gag) for Joe Biden.
When DOJ first moved for a gag on September 5, Shry remained detained pretrial, based on the findings that she had repeatedly made increasingly serious threats in the previous year.
Defendant has been criminally charged four times in the past year for engaging in similar conduct. On September 20, 2022, she was convicted in two separate cases (misdemeanor resisting arrest and misdemeanor criminal mischief) and sentenced to 30 days imprisonment. Recently, on July 11, 2023, she was charged with misdemeanor threat causing fear of imminent serious bodily injury. It is alleged that she committed the instant offense while on bond for the July 11 incident, less than one month after it occurred.
Defendant suffers from major depression and has a long history of substance abuse. She denies using any illegal substances for the past year. However, according to Defendant’s father, she excessively drinks beer daily. Defendant lives with her boyfriend, but he is presently charged with a family assault against her. Defendant has two children, ages 17 and 19, who currently live with her parents.
Defendant’s father, Mark Shry testified at the detention hearing. Mr. Shry believes that Defendant is a non-violent alcoholic. He testified that she sits on her couch daily watching the news while drinking too many beers. She then becomes agitated by the news and starts calling people and threatening them. Mr. Shry stated that his daughter never leaves her residence and therefore would not act upon her threats. He has agreed that Defendant can reside with him and Defendant’s mother, and he would serve as a third-party custodian.
Defendant’s aggressive and threatening behavior has continually escalated during the past year as evidenced by her criminal conduct in four separate cases.
But by the time DOJ resubmitted the motion on September 15, Shry had been released to home detention with an order to get mental health and substance abuse treatment.
In less than 24 hours since the stay, Donald Trump has shown a fine-tuned ability to continue to issue threats even as he adheres to the letter of the gag, just like I used to legalistically adhere to my seventh grade Geometry teacher’s rule against chewing gum in class by simply not chewing the gum in my mouth.
But there are thousands — maybe millions — of Trump supporters with mental health problems out there, sitting on couches, getting worked up about what they see on Fox News.
And as this gag gets appealed all the way to SCOTUS, Judge Chutkan has chosen to entrust her own safety from threats like Shry’s to the US Marshals, not to any gag.
Update: Fixed some points where I said the opposite of what I meant wrt lifting or staying the gag.