Last night, as he has on many other nights, Donald Trump issued a series of social media statements in which he attacked Fulton County prosecutor Fani Willis, as well as the whole concept that he should have to make court appearances just because he was indicted for multiple felonies. In talking about Willis or Manhattan District Attorney Alvin Bragg, Trump frequently uses heavily-loaded racist phrases. When talking about federal special counsel Jack Smith, Trump switches to demeaning terms about mental health, with “deranged” being the most frequent tag applied in the middle of long, nonsensical, hate-filled rants.
Trump doesn’t restrict his attacks to prosecutors. Both his social media posts and his rally speeches have also been laced with scorn directed at judges. That includes U.S. District Court Judge Tanya Chutkan, who is presiding over Trump’s indictment in Washington D.C., for his attempts to overturn the 2020 election, and Judge Juan Merchan, who is in charge of Trump’s Manhattan indictment for tax fraud. These attacks are generating safety concerns surrounding public figures involved in the prosecution of Trump and the death threats from Trump supporters have already begun.
But as attractive as the option to stifle Trump may seem, odds are good that no judge will do anything to place significant limits on Trump’s lies and personal attacks.
Before looking at why Trump’s judges are unlikely to place tough limits on his speech, it’s worth looking at the one judge who is not getting this kind of attack. Judge Aileen Cannon, who is in charge of the case resulting from Trump’s Florida indictment over stealing highly classified defense documents, doesn’t come in for the abuse that Willis, Smith, Bragg, or Chutkan regularly receive.
A big part of the reason is that, unlike Willis, Bragg, and Chutkan, Cannon is not Black. That’s an obvious factor. Not only have Trump’s attacks been filled with racist statements, his whole narrative against Willis in particular is centered on how she can’t fairly prosecute Trump because she is Black. Trump has gone after Willis for her name, her heritage, her father’s role as a Black Panther and social activist in the 1960s, and for a completely fabricated “affair with a gangster.” Trump has made Willis’ race an intrinsic and explicit part of his attacks.
But the even bigger reason Trump never mentions Cannon is the simplest: She is constantly bending over backwards and twisting the law into pretzel knots to give Trump what he wants.
For Trump, his attacks are part of a transaction, one that he’s talked about many times. So long as he feels like people are doing what he wants, he lays off. If not, he attacks. Cannon is giving Trump what he wants, and her payment is not discovering what false claims Trump might throw at her if she dared to follow legal precedent.
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Chutkan would certainly like Trump to tone it down. So would Merchan. So would Fulton County Superior Court Judge Scott McAfee, who set the bond and appearance conditions for Trump and his co-defendants, and who may end up hearing the Georgia case.
However, they’re extremely unlikely to place the limits on Trump that would be faced by any other defendant when it comes to talking about the case. That may seem unfair—because it is unfair—but the reason is simply Trump’s candidacy for 2024.
It’s not just that Trump has to be free to proclaim his innocence, push back against political opponents, and declare that he will prevail in court. All those things are a given. It’s that placing any limits on Trump’s speech will be difficult because Trump’s platform for 2024 is expressly one of promising an authoritarian purge, with the FBI and Department of Justice as parts of his targeted areas of destruction.
The racism that Trump is expressing toward Willis, the demeaning language toward law enforcement, and the general disdain for the idea he needs to follow any laws at all: That’s all part of what Trump is selling his followers in this campaign. Trump’s attorneys could make a good (if extremely distasteful) case that denying Trump his ability to fling the smelliest variety of monkey poo cuts to the core of the First Amendment.
He is running on an openly racist, openly anti-democratic, openly pro-authoritarian platform. Crushing all those who oppose him, ripping apart existing government structures, and no-law-but-Trump is what he’s pushing. And if that’s his pitch to the public, then how do you limit his assault on justice without censoring the core of his campaign?
On top of all that, Trump is honestly hoping someone will impose a gag order. He’s already been sending out fundraising emails calling even the most modest limits a gag order. He wants to show that he will violate any such order. And if a judge tries to rein him in for this, that’s even better. No matter how many unfair advantages he is given, Trump is a walking persecution complex who wants nothing more than to be seen as a martyr to the cause, where the cause is Trump.
Judges are well aware of Trump’s schtick. After all, he spent a large part of 2016, 2017, and 2018 attacking Judge Gonzalo Curiel, who presided over a case involving Trump’s “wall” for having a Mexican heritage. Those attacks were both deeply personal and absolutely racist. In 2017, the Brennan Center for Justice looked at Trump and found a long history of attacks on judges and prosecutors. Federal judges have long bemoaned how Trump’s attacks on the judiciary have undermined faith in the justice system.
But no one has done anything about it.
Trump has picked up right where he left off with attacks on Merchan. In a speech to supporters at Mar-a-Lago, Trump didn’t just label the judge a “Trump hater,” but also went after members of his family. Family members of Bragg and Willis have also come in for attack, but these are also unlikely to give Trump the legal Rubicon he’s so anxious to cross.
Just about the only things that might get Trump in trouble are attacks on jurors by name, or possibly being even more explicit in his already pretty damned explicit attempts to lean on witnesses. If that’s what it takes, Trump will go there. But until then, he’ll keep pushing. Keep demeaning. Keep name-calling. Keep making the racist and authoritarian foundations of his campaign clear. And the line for him to cross before consequences are handed down will keep moving.
Don’t expect his attacks on judges, prosecutors, or the system to decrease … but do worry what that means for the future.
American political parties might often seem stuck in their ways, but they can and in fact do change positions often. Joining us on this week’s episode of “The Downballot” is political scientist David Karol, who tells us how and why both the Democratic and Republican parties have adjusted their views on a wide range of issues over the years. Karol offers three different models for how these transformations happen—and explains why voters often stick with their parties even after these shifts. He concludes by offering tips to activists seeking to push their parties when they’re not changing fast enough.
