Though the world’s attention has shifted to the Middle East from Republican Party dysfunction and its putative 2024 presidential nominee, that secondary concern still must be dealt with. By considering what it would mean for U.S. foreign policy and military alliances to reinstall a person whose major takeaway from the Israel-Hamas War is “I’ll never forget that Bibi Netanyahu let us down” referring to the Israeli President’s phone call congratulating Joe Biden while Trump continued to contest the election and foment insurrection. And the much-discussed question posed in the title of this 176th HL post.
Judge Tanya Chutkan has to answer that question, as it is certain Trump will violate the modest and surgically precise gag order she imposed on him this week. In response to Trump’s targeting of witnesses, prosecutors, court staff and the judge herself in previous excretions about the federal election case against him.
My suggestion for what she should do when he violates her gag order is inspired by and homage to the “Gamesters of Triskelion” the Star Trek episode where Captain Kirk and crew are temporarily enslaved by the rulers of Gamma II and fitted with “collars of obedience.” These devices choke them whenever they begin to break the rules. That’s the basic idea for Trump, albeit using a constitutionally permissible obedience yoke after he’s violated the gag order a couple of times.
The constitutional infirmity in the device that Kirk, Uhura and Chekov were fitted with is the infliction of punishment without due process in violation of the 5th Amendment. And that leaves aside analysis of “cruel and unusual” under the 8th Amendment. But a collar or other contraption attached to Trump’s body is constitutionally sound and comes with ample precedent.
We’ve all heard many times that Judge Chutkan can but won’t jail him for reasons you’ve also heard too many times. House arrest, say at Mar-a-Lago or in that Trump Tower apartment measuring some 30,000 minus 19,000 square feet would neither inconvenience him nor stop further gag order violations. He could appear at rallies on large screens and would also be gifted another excuse for skipping future candidate debates.
Other criminal defendants in other cases have had devices appended to their bodies. For example, to monitor their whereabouts and travels and to deter flight. In Trump’s case the device would monitor and interrupt contemptuous speech, each time it begins.
Long ago part of my job was monitoring but mostly reviewing other “cops” monitoring of the fruits of a wire planted in a black Jaguar that transported an organized crime family captain and his driver. When monitoring myself I had to stop listening when the speech was privileged, as in a lawyer-client or priest-penitent conversation. And in reviewing I had to scrub when my colleagues had improperly crossed that line.
Similar protections would be necessary for Trump. But the device I propose is clearly permissible. Recall in all those explanations of why Judge Chutkan wouldn’t jail him, the commentators assured us that she could. And if she did, all his communications, save those privileged, would be monitored and policed to prevent further contempt of the gag order. Why not then just wire him up? Trump’s going to brag, and fund raise off any of the other less effective antidiarrheals. That would be a lot harder with my state-of-the-art and far more effective formulation.
 Farhad Manjoo of the Times has decreed that everyone use gender neutral pronouns, therefore his suggested edit to this sentence fragment is “My suggestion for what they should do when they violate their gag order. . .”