Two judges have now threatened to clamp down on President Trump’s stream of insults and barbed commentary on judges, prosecutors, witnesses, and courtroom staff, but in this high-stakes game of judicial chicken, the former president has retained both his freedom of speech and freedom of movement. 

The latest signal of judicial reluctance to take away Mr. Trump’s liberty for the liberties he takes on his Truth Social account comes from Judge Tanya Chutkan at the District of Columbia. She has been a fierce critic of Mr. Trump and just this week reinstated a gag order on him that she had suspended pending appeal. 

While that ruling is a setback for Mr. Trump — it follows a spate of posts lambasting his former chief of staff, Mark Meadows — the decision could have been worse. In a footnote, she declined Special Counsel Jack Smith’s request to make the prior restraint a condition of the former president’s release pending trial, set for March.

Conditions for release are detailed when a defendant is first arraigned. At Mr. Trump’s arraignment for his January 6 charges in August, the presiding magistrate judge explained that the former president’s pre-trial liberty is contingent on him refraining from attempting to “influence a juror or try to threaten or bribe a witness or retaliate against anyone.”

Judge Chutkan’s gag order, though, goes further and prohibits public comments targeting prosecutors, court staff, as well as potential witnesses. Mr. Smith wanted her to “modify the defendant’s conditions of release to protect witnesses from his attacks.” He points to Mr. Trump’s online attacks on Mr. Meadows as “an intentional end-run around” those release conditions. 

Federal law, Mr. Smith observes, allows judges to “at any time amend the order to impose additional or different conditions of release.” Judge Chutkan, though, has declined that invitation, writing, “even assuming that request is procedurally proper the court concludes that granting it is not necessary to effectively enforce the Order at this time.” 

By declining to modify the terms of Mr. Trump’s release, Judge Chutkan prevents her gag order from being even further embedded in the architecture of the case. She also retains discretion over how to punish violations of the order, mentioning “sanctions” but not explicitly invoking prison for violating the order. A condition of release, though, explicitly contemplates forfeiture of freedom. 

Judge Chutkan’s rebuff to Mr. Smith comes even as she admits that Mr. Trump’s attacks on Mr. Meadows “would almost certainly violate” her order if it had not been paused. The former president speculated that his erstwhile aide de camp could be among the “weaklings and cowards” who have turned on their onetime boss. Still, she has not mentioned prison for Mr. Trump. 

A New York state judge, Arthur Engoron, has, on the other hand, repeatedly threatened jail for violating his gag order but has thus far failed to follow through. Judge Engoron is presiding over the fraud case brought by the state of New York. His order came after Mr. Trump posted a picture of the judge’s law clerk, Allison Greenfield, with Senator Schumer and baselessly referred to her as the lawmaker’s “girlfriend.” Mr. Trump also linked to her Instagram account. 

Judge Engoron was quick to impose a gag order, but he has been slow to enforce it to the hilt. On learning that the offending post remained on Mr. Trump’s website, he fined the former president $5,000 and warned that “future violations, whether intentional or unintentional, will subject the violator to far more severe sanctions,” including “possibly imprisoning” Mr. Trump.

Last week, though, Judge Engoron found that Mr. Trump “intentionally violated the gag order” for a second time when he told reporters that “this judge is a very partisan judge with a person who is very partisan sitting alongside him — perhaps even much more partisan than he is,” likely a reference to Ms. Greenfield. 

Mr. Trump testified that he was, in fact, referring to his former lawyer, Michael Cohen, whom he despises, but the judge did not find him credible. Mr. Trump’s comments merited a $10,000 fine from Judge Engoron, but again, no jail time. 

Despite Judges Chutkan and Engoron both insisting that their trials are not political, their apparent and mutual hesitation to put Mr. Trump behind bars could flow from a shared recognition that he is not only a criminal defendant but the frontrunner for the Republican nomination for president in 2024. Jailing him prior to a conviction could go a way to vindicating the former president’s oft-repeated insistence that the system is “rigged.”