WASHINGTON — Donald Trump made clear to his followers he knows the difference between a jail and a prison, and he may well get a chance to experience both thanks to the same federal judge.
Soon after U.S. District Judge Tanya Chutkan on Sunday night reinstated a limited gag order banning Trump from attacking likely witnesses in the criminal case related to his coup attempt, the former president unloaded on his onetime attorney general, Bill Barr, who is almost certain to be called as a prosecution witness.
“I called Bill Barr Dumb, Weak, Slow Moving, Lethargic, Gutless, and Lazy, a RINO WHO COULDN’T DO THE JOB,” Trump posted to social media about an hour after Chutkan’s decision was entered into the court record. “Bill Barr is a LOSER!”
It’s unknown whether Chutkan will respond to the apparent offense by revoking Trump’s pretrial release and sending him to the District of Columbia lockup. In any event, Trump will be at her mercy should he be convicted of the most serious felonies in the case she is overseeing, which are punishable by decades in prison.
Trump’s lawyers and campaign staff did not respond to HuffPost queries about the attack on Barr after Chutkan’s gag order was back in place.
Glenn Kirschner, who spent two decades prosecuting felonies in the District of Columbia’s U.S. attorney’s office, said Chutkan would likely have to determine whether Trump was aware that her order, which she had temporarily put on hold, had been reinstated.
Though if and when he flouts it again — Trump in the wee hours Monday attacked Chutkan for lifting the stay, calling her a “very Biased, Trump Hating Judge” — Chutkan would clearly have the factual basis for establishing that Trump knew what he was doing, Kirschner said.
“It’s within her discretion,” he said, but added that she had previously denied prosecutors’ request to spell out that noncompliance with a gag order would violate his conditions of release.
Others said that while Chutkan could in theory order that Trump be locked up ahead of trial, such a move would likely be seen as too drastic.
“Going from zero to 60 on punishment would be unwise,” said Renato Mariotti, another former federal prosecutor who cautioned that appeals courts would take Trump’s argument that he has a First Amendment right to publicly disparage anyone he wants, including witnesses. He suggested that a more effective tool Chutkan could use is to advance Trump’s trial date from next spring.
Trump and his lawyers have been working hard to push all of his criminal trials until after the November 2024 election. Should Trump win the presidency back, he would be able to end federal prosecutions against him and almost certainly have the state cases put on hold until his term ended.
“Throwing this guy in jail would create more problems,” Mariotti said.
Trump ― who throughout his political life has displayed a surprising level of ignorance about basic facts regarding the nation and the world — brought up the prison-jail distinction at his Saturday night rally at a country music nightclub near the Las Vegas airport.
“You know there’s a difference between a prison and a jail?” Trump asked his audience, apropos of very little. “Not a big difference. Neither one’s great.”
Jails are typically for pretrial detainees who are being held as dangers to the community and for those serving sentences of less than a year. Prisons are generally for those who have been sentenced to a year or more of incarceration after a criminal conviction.
It’s not clear whether Trump has known this for some time or if he only learned of the difference since his own encounters with the criminal justice system began earlier this year. Trump has been claiming that he didn’t even know what an indictment was until prosecutors started indicting him this spring.
Chutkan on Oct. 16 found that Trump’s previous statements disparaging witnesses, prosecutors and the judicial system both put people in personal danger and made it more difficult to ensure a fair trial. Chutkan herself now has protective security as a result of Trump’s repeated verbal and written attacks against her.
She prohibited the former president from targeting prosecutors, court personnel — although she did not include herself in that category — and witnesses who would be testifying at his trial.
In her new filing reinstating that gag order, she wrote that Trump was perfectly capable of continuing his campaign for president within her guidelines and used his own social media posts as proof.
On Oct. 20, while her initial order was in effect, Trump lashed out at President Joe Biden, repeated his lies that the 2020 election had been stolen from, and claimed that the prosecutions against him were designed to keep him from returning to office – all comments that Chutkan had already said were allowable under her gag order.
But on Oct. 24, during the period that the order was suspended, Trump attacked his former chief of staff Mark Meadows and the credibility of his likely testimony.
“This statement would almost certainly violate the order under any reasonable definition of ‘targeting.’” Chutkan wrote. “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.”
In addition to the four-count indictment he faces in Chutkan’s federal courtroom, Trump is under 87 separate counts in three other indictments in Georgia state court, New York state court and a federal court in South Florida. He nevertheless remains the polling leader in the race for the 2024 Republican presidential nomination.