When Judge Tanya Chutkan of the federal district court for D.C. was assigned the trial of Donald Trump for his attempt to steal the election, according to the journalist Robert Draper, she asked a friend to pray for her. Chutkan’s decision today to impose a gag order on the former president, her most consequential pronouncement in the case so far, shows why she’ll need prayer, if not outright divine wisdom, to navigate the challenge before her. Chutkan faces a series of impossible choices.

Her first impossible choice: whether to impose any gag order at all. As she described it in court, the order she granted appears narrower than what prosecutors sought. It prohibits disparaging remarks only of witnesses, prosecutors, and court staff, but allows Trump to continue attacking the Justice Department, President Joe Biden, and others—including Chutkan herself—as long as his comments do not directly bear on the case.

Chutkan’s order followed a two-hour hearing in Washington, in which prosecutors argued that Trump’s comments would poison the chance for a fair trail, while the defense attorney John Lauro repeatedly—and to Chutkan’s dismay—called any restriction “censorship.” The judge probed both prosecutors and defense with piercing questions. She peppered Assistant U.S. Attorney Molly Gaston, representing Special Counsel Jack Smith’s team, with questions about their proposal, siding with Lauro’s contention that the government was asking for something too broad. But she reminded the defense, “Mr. Trump is facing criminal charges. He does not get to respond to every criticism of him if his response would affect potential witnesses. That’s the bottom line here."

The dilemma for Chutkan is that almost any course she chooses threatens rule of law. She can hardly allow Trump to do things that she believes could corrupt the proceedings or intimidate witnesses, as the government alleges he has done. That would either erode the court’s ability to police every defendant, or else it would suggest that Trump doesn’t have to follow the same rules as everyone else. Gaston framed the question for Chutkan just this way: “What Mr. Lauro is saying is the defendant is above the law and he is not subject to the rules like any other defendant is.”

Trump does have legitimate interests as a political candidate in being able to speak (mostly) freely, and federal courts appropriately show little interest in policing candidates’ comments on the stump. Yet even considering those needs, the judge was troubled by some of Trump’s remarks in recent weeks, including attacks on Smith’s wife and on a law clerk for New York State Supreme Court Justice Arthur Engoron, who is overseeing a civil fraud case against Trump. She also pointed to Trump’s suggestion last month that Mark Milley, the former chairman of the Joint Chief of Staff, should be executed for treason. This language “frankly risks a real possibility of violence,” she said, adding: “We are in here today because of the statements that he’s made … right up to last night. I’m not confident that without some kind of restriction we won’t be in here all the time.”

The parties might be in court all the time anyway. Anyone familiar with Trump knows that he has no respect for rules and restrictions. He is already bound by federal laws against intimidating witnesses, and Chutkan previously placed standard limitations on him, including communicating directly with known witnesses. Lauro stated in court that Trump had complied with these conditions. “What you have put in place is working,” he said. Chutkan replied, laughing: “I have to take issue with that.”

Lauro promised to appeal any gag order, and his remarks in the courtroom, as well as Trump’s recent public statements, previewed the backlash to come. The attorney argued that Trump’s First Amendment rights were being abridged. He also complained that the whole thing amounted to election interference by Biden’s Justice Department, and that a gag order could allow Biden to attack Trump without Trump being able to respond. (In reality, Biden has been conspicuously quiet on the criminal cases against Trump, for fear of being seen as interfering.)

“Joe Biden is not a party to this case. He’s not subject to conditions of release,” Chutkan replied—though her eventual order did make clear that Trump could criticize Biden. The Trump campaign quickly took the opportunity, saying in a statement that the decision “is an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden, who was granted the right to muzzle his political opponent.”

The judge was dismissive of these complaints. “Mr. Trump is a criminal defendant. He is facing four felony charges. He is under the supervision of the criminal-justice system and he must comply with the conditions of release. He does not have the right to say and do exactly as he pleases,” she said. On another occasion, she scolded Lauro, saying, “I do not need to hear any campaign rhetoric in my courtroom.”

But the campaign rhetoric is not meant for her—it’s meant to influence voters, and convince them that Trump is subject to political persecution. Now that she has placed new conditions on him, he’s certain to test the limitations and he tests the limitations. This leads to more impossible choices. First, she’ll have to rule on what falls afoul of the gag order and what doesn’t. Second, she’ll have to find ways to enforce any violations she does find. His campaign will be happy to portray any attempt to do so as more evidence of political persecution.

Lauro seemed to be almost daring her to do that. In one question, he tried again to argue that Trump’s unique status as a criminally charged presidential candidate should get him out of the usual rules, wondering what would happen if Trump blurted something out about a witness during a presidential debate (should be choose to actually participate in one, as he so far has not).

“Is your honor going to put President Trump in jail during the campaign?” Lauro asked. How could she dare to lock up a presidential frontrunner? And yet, if he thumbs his nose at the law, how can she not?

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Kevin McCarthy lost his job as speaker of the House because eight of his fellow Republican representatives decided he was insufficiently willing to fight. They believed that he lacked the stomach to use the debt ceiling or the potential of a government shutdown to extract serious concessions from the Democratic Senate and President Joe Biden. And now, nearly two weeks after they ousted McCarthy, Republicans still can’t settle on a replacement. Quite a few of the most combative members insisted they would back only Representative Jim Jordan on the floor, including Representative Lauren Boebert, who told reporters, “I’m ready for somebody who’s gonna throw down and not care who’s in the way.”

Boebert’s bellicosity reflects a deep strand of the modern congressional Republican self-image, stamped on the party three decades ago by then-Speaker Newt Gingrich. Gingrich brought House Republicans out of 40 years in the political wilderness and into the majority, and he did it by being a prophetic champion of confrontation. From his first congressional race in 1974 all the way through the end of his speakership in 1998, Gingrich was motivated by the belief that confrontation had the power to rescue Americans from their corrupted politics. There was an art, a choreography to this sort of redemptive combativeness, Gingrich thought: “When you give them confrontations, you get attention; when you get attention, you can educate.” If they could make their case to the American people, Republicans could stop taking breadcrumbs from the Democrats’ table and take over the banquet hall themselves—and run it better.

[Read: Steve Scalise bows out]

The GOP’s return to the majority came after the 1994 midterms. By now, Gingrich’s catechism of confrontation has become an embedded tradition among House Republicans. But as it has been passed down, it has become hollowed out and fetishized. Gingrich’s clashes were in service of a party and a positive program. His descendants often seem to want confrontation for its own sake, even as it is ripping their party asunder and pushing policy away from their preferences. If House Republicans want to find their way back to being a functional party—and that is not a given—they will have to master their urge to fight.

The question of just what kinds of confrontations are worth pursuing was at the heart of the fight last week between Jordan and Representative Steve Scalise, the majority leader and logical next man up. In a secret ballot, the conference narrowly supported Scalise, 113–99, showing that the GOP is genuinely split on the point. That neither Scalise nor Jordan could hope to take a winning vote and automatically turn it into a viable speakership shows that the divide may have become unbridgeable.  

Briefly considering the two men’s congressional careers helps illuminate what each side is about.

Scalise first came to the House after winning a special election in 2008. Although his policy preferences are quite conservative, he has a transactional sensibility and has been a consistent supporter of yearly spending deals. He is someone who likes to dole out trinkets to his colleagues and generally wants to be well liked. Having been nearly assassinated by a left-wing political extremist in 2017, he has sometimes been an eloquent exponent of across-the-aisle goodwill; his return to Congress after recovering from his wounds was one of the few feel-good moments in the House’s past decade.

Jordan is the walking embodiment of conflict-mindedness. First elected to the House in 2006, just as Republicans returned to the minority, he made a name for himself as a critic of government spending and bailouts (not sparing President George W. Bush from his ire), pushing pro-life ideas and hammering several of Barack Obama’s Cabinet members. Jordan’s conception of a lawmaker’s role has never laid much emphasis on making laws. He relishes representation for its own sake; in 2011, he explained why he planned to remain in the House rather than challenge Sherrod Brown for a spot in the Senate: “I like that you are here to fight for things you told the voters you are going to fight for.” For Jordan, an accomplished wrestler as a young man, that means waging a relentless rhetorical struggle against the powers that be. The negative is far more important than the positive.

After the Republicans’ midterm wave in 2010, Jordan’s relentlessness helped get him elected as head of the Republican Study Committee, traditionally a bastion of conservatism in the House. Before long, however, Jordan and many of the most combative members of the GOP conference came to feel that the RSC was no longer conservative enough; specifically, it was too large to provide the cohesiveness needed to take a hard line in negotiations with Republican legislative leaders looking to compromise. To play that role, Jordan and like-minded colleagues including Mark Meadows, Mick Mulvaney, and Ron DeSantis founded the House Freedom Caucus (HFC) after the 2014 midterms. When Speaker John Boehner proved too willing to come to terms with Obama in September 2015, the HFC hounded him into retirement. (Meanwhile, following Jordan’s departure from the Study Committee, its next head was Scalise, who would go on to parlay that job into a successful run for minority whip after Majority Leader Eric Cantor was unexpectedly defeated by an outsider primary challenge in 2014.)

[Read: ‘We put sharp knives in the hands of children’]

The HFC also learned to harmonize with Donald Trump, the outsider critic of the establishment then taking its party by storm. The legislators’ initial relationship with Trump was tense, because many preferred Senator Ted Cruz and suspected Trump of being a squish. But as the sharp-elbowed New Yorker gained momentum, HFC members switched horses with real agility. Trump rewarded them by making Mulvaney the head of the powerful Office of Management and Budget. The peak of HFC cooperativeness came in pursuit of tax reform in the fall of 2017.

After that, the group’s pugnaciousness came back to the fore. Speaker Paul Ryan gave its members hearings but lacked their desired killer instinct in dealing with Nancy Pelosi’s Democrats as they went after Trump. The president soon absorbed their sense of embattlement and took them on as confidantes; Meadows would become his chief of staff. Jordan, especially, pushed Trump into open conflict with the lame-duck Republican Congress in December 2018 over the question of border funding. Faced with a veto threat from a president who would not accept a clean continuing resolution, the House and Senate never came close to getting on the same page and left the new Congress (including the first Democratic House in eight years) to deal with a partial government shutdown that would eventually last a record 35 days. Trump, who had said he would be “proud” to shut down the government in pursuit of border-security funds, eventually decided to accept Democrats’ legislative terms while simultaneously acting to circumvent Congress by means of a dubious declaration of national emergency on the southern border, which allowed him to repurpose some funds. Jordan, unsurprisingly, said he supported the president’s move “100 percent.” Confrontation comes first.

When House Republicans have been in the minority, keeping their factions aligned has been a manageable task. All can turn their aggressive energies against Democrats, and those with more inclination toward cutting deals to keep government working can sign onto bipartisan agreements crafted by Democratic leaders. Activists may denounce these members as RINOs—Republicans in Name Only—but among members these tensions are manageable.

When Republicans have held the House majority in the post–Tea Party era, however, the tension between the confrontation-minded and the establishment has been radioactive—containable for a time, but ultimately giving rise to fissures. Leading the Republican House is a truly nightmarish job. Boehner lasted nearly five years, which now seems remarkable. Paul Ryan lasted three; Kevin McCarthy, just 270 days. As someone joked, the half-life of Republican Speakers may soon be measured in hours.

Gingrich’s own speakership gave foreshadowings of this revolution-eating-its-own-children dynamic. His conference in 1995, which included 73 mostly very enthusiastic freshmen, fed on his promises of transforming the federal government through dramatic showdowns. As they teed up an incredibly broad and ambitious slate of bills, Republican legislators sometimes talked as if the American people had elected Gingrich prime minister, with Bill Clinton’s presence in the White House regarded as a sort of unfortunate hitch caused by Ross Perot’s 1992 run. Republicans, and their speaker, soon learned how little Congress resembles a Westminster Parliament, though. They frequently misjudged what House Republicans were willing to vote for and were even more mystified by their Senate counterparts, who had not gotten the memo about the need for a thoroughgoing revolution. They poured much of their energy into a series of skirmishes over federal spending, expecting Congress’s power of the purse to carry the day. Clinton frustrated their ambitions at every turn, vetoing bills but still blaming two successive government shutdowns on congressional Republicans. The prophet of confrontations ironically ended up playing the role of conciliator, begging his own members to accept less than half a loaf in return for reopening the government.

Gingrich had taken his career-long pitch against the corrupt Washington establishment and transformed it into an agenda for cutting government. He had forced that transformation onto the congressional agenda and managed to push it through the House. But he showed little ability to bring along all the factions within his own party, let alone the Democratic president. His battles with the president gave him ample opportunity to “educate” the American people, but he lacked realistic endgame strategies for dealing with those who remained unpersuaded. His post-shutdown speakership saw him seek out more performative kinds of fights, including a bad bet on impeaching Clinton, while simultaneously securing some important policy victories that fell well short of his promise to roll back the Great Society.

[From the November 2018 issue: The man who broke politics]

Would Jordan, or one of his HFC colleagues, follow Gingrich’s trajectory if they ended up with the speakership? It is possible, but whereas Gingrich had an infectious vision of what America ought to be about and was bursting with ideas about how to fix up the government, his successors seem dour and unimaginative in their pugnacity. And whereas Gingrich was a committed Republican team builder, the HFC was in some sense created out of a sense that Republicans needed more internal strife. For Jordan, confrontation seems to be its own reward, and “small government” seems to be a slogan as much as a goal to be realized. The HFC’s strategy of intransigent resistance to compromise tends to move ultimate policy outcomes to the left by forcing other Republicans to seek terms with Democrats, most analysts agree. Speaker Gingrich would not have approved—and Gingrich as elder statesman has been unsparing in his criticism of the HFC’s tactics and unwillingness to rally behind McCarthy.

There remains, nevertheless, a grain of truth in the HFC’s blanket criticism of the establishment. A remarkable portion of legislation that has emerged from Congress in the 21st century has been the result of deals cut by leaders of both parties, with committees and rank-and-file membership both relegated to acting as eleventh-hour ratifiers rather than real collaborators in the legislative process. Allowing more disputes to play out in the political arena, as Representative Matt Gaetz called for when he led the charge against McCarthy, would indeed be healthy for our democracy. But if that path is to ever favor conservatives, they will need to change their approach to conflict. They need to realize that, rather than just “educating” the public and hoping to sweep all opposition before them, to make the most of their roles as legislators they must turn their sights to their fellow representatives. Confrontation must be in service of persuasion, and win-win conciliation must be an ever-present possibility.

The deep logic of Congress and its place in our constitutional system ought to call Republican lawmakers in this direction. All the drama in 2023 could represent a first step down the path. But the road ahead is long.