At issue in the hearing on Monday is whether Judge Tanya S. Chutkan should impose a gag order on former President Donald J. Trump in the federal election subversion case.
Gag orders can forbid people to publicly discuss a case or aspects of it. In this dispute, Jack Smith, the special counsel, has asked Judge Chutkan to bar Mr. Trump from publicly making “disparaging and inflammatory or intimidating” public statements about witnesses, the District of Columbia jury pool, or the judge and prosecutors themselves.
Doing so would raise tricky First Amendment issues as Mr. Trump makes another bid for the White House in a campaign that is partly defined by the criminal cases against him — and in which one of his rivals for the Republican nomination, former Vice President Mike Pence, is also a potential witness.
There is not a lot of precedent to guide Judge Chutkan’s decision. Gag orders are more typically imposed on defense lawyers instead of defendants, who under normal circumstances tend not to talk publicly about their cases out of self-interest.
And gag orders are more typically about preventing the jury from being tainted by hearing about the case outside the courtroom, while Mr. Smith has focused on the risk that Mr. Trump’s attacks may inspire threats or violence against participants in the process.
Like any other judicial order, a gag order that is defied can be treated as a matter of contempt of court. To uphold the court’s authority and otherwise maintain order, judges can order contempt proceedings, which could result in a reprimand, fine or imprisonment.
How contempt proceedings work, however, is very complicated. There is no single rule that regulates what should happen, making it hard to say exactly how it would play out if Judge Chutkan were to impose such an order on Mr. Trump and then decide that he had violated it.
There are different rules for situations in which judges have direct knowledge of the misconduct and those in which they have indirectly heard allegations. Judges can also treat contempt as a civil or a criminal matter depending in part on whether their focus is more to coerce future compliance or to punish past disobedience.
Depending on the factors, judges can sometimes summarily impose a fine of up to $1,000 and a sentence of up to six months in prison. But in other cases, they must seek the appointment of a prosecutor and a jury trial would follow.
In the instance of a trial, a federal rule of criminal procedure states that “if the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents.”