“First Amendment protections yield to the administration of justice and to the protection of witnesses,” Judge Tanya Chutkan said Monday as she issued the gag order. “His presidential candidacy does not give him carte blanche to vilify … public servants who are simply doing their job.”
For Trump, it’s one of the first tangible consequences of his multiple brushes with the criminal justice system, in this case on four felony charges related to his effort to subvert the 2020 election. Chutkan has scheduled Trump’s trial to begin on March 4 and emphasized Monday that the date would not change.
“This trial will not yield to the election cycle and we will not revisit the trial date,” Chutkan said.
Complying with Chutkan’s order will require a significant shift in Trump’s public demeanor. He routinely uses his social media megaphone and rally speeches to assail his lead federal prosecutor, special counsel Jack Smith, as “deranged.” Trump also has taken to branding the lawyers working under Smith as “thugs.” Those comments, Chutkan said, risk poisoning the proceedings.
Trump, who opted to campaign in Iowa rather than attend the hearing Monday, has also in recent weeks pointedly attacked several known witnesses in the case. He suggested that one of them, retired Gen. Mark Milley, would have warranted the death penalty in another era, and he repeatedly blasted another, former Attorney General Bill Barr.
Acknowledging Trump’s broad right to weigh in on public policy issues as he pursues a second term in the White House, Chutkan said nevertheless that Trump could not launch a “pretrial smear campaign” against those who might testify against him. She said she would consider “sanctions” if she observes any violations. She did not elaborate on those sanctions, although she said she planned to issue a written order with further details.
The pronouncement raises the prospect that Trump could face punishment — ranging from restrictions on his use of social media all the way up to potential pretrial incarceration — if he continues to mount public attacks on Smith and his team or witnesses likely to testify in his March trial.
It is the second time in two weeks that a judge has tried to muzzle Trump’s attacks. Earlier this month, in an ongoing civil trial in New York over alleged business fraud by Trump and his companies, a Manhattan judge issued a limited gag order after Trump posted an attack on the judge’s top clerk.
Chutkan, who was appointed to the federal bench by former President Barack Obama, declined to impose restrictions on Trump’s ability to criticize Washington, D.C., or its residents. She also declined to restrict Trump’s claims that the prosecution is part of a political vendetta on the part of the Biden administration.
The judge’s ruling followed a two-hour-long hearing in which she repeatedly sparred with Trump attorney John Lauro about the scope of any potential gag order and about the impact of Trump’s earlier provocative statements about potential witnesses and other participants in both the D.C. election subversion case and Trump’s other cases.
Lauro said early in the hearing that Trump would immediately appeal any order similar to the one prosecutors had requested. And on Monday afternoon, in a post on his Truth Social platform, Trump confirmed his intention to appeal. A Trump spokesperson called the gag order “an absolute abomination.”
Chutkan publicly wrestled with the tension between Trump’s right to criticize the government and the reality that his statements could influence Washington, D.C., jurors, intimidate witnesses against him or generate threats against them by some of Trump’s followers. She said she was “deeply disturbed,” for example, that Trump publicly attacked the New York judge’s clerk even as prosecutors’ gag order request was pending against him in Washington.
Lauro, one of the many defense attorneys representing Trump in the four criminal cases he now faces, found himself alternating between forceful defenses of the former president’s First Amendment rights and acknowledgements that he would advise Trump not to use some of the language he has used in his social media posts.
Lauro repeatedly described the prosecutions against Trump as a sign of a nation veering into “totalitarianism” and “tyranny.”
“What does somebody do in the face of oppression in a system that now approaches totalitarianism … ? In President Trump’s mind, that’s what he is facing right now,” Lauro said, at one point invoking “1984” author George Orwell.
“George Orwell would have a field day with what we’re hearing from these prosecutors,” Lauro said.
“George Orwell would definitely have a field day,” the judge muttered in response.
At times, Chutkan chafed at Lauro’s speechifying, admonishing him to answer her questions rather than engage in “political” rhetoric.
“Obviously you have an audience other than me in mind,” she said as Lauro defended Trump’s use of the word “thugs” to describe Smith’s team.
Lauro also found himself offering what the judge clearly viewed as strained interpretations of Trump’s social media posts, including one colorful message describing Washington, D.C., as “filthy” and “crime-ridden.”
“I don’t look at those statements in any way as disparaging the people of the District of Columbia,” the defense attorney said, framing the taunt as an attack aimed squarely at the Biden administration.
In the hours after Lauro claimed a gag order would chill the former president’s speech, Trump and his campaign did little but talk about it. Trump posted about it repeatedly on Truth Social, and his campaign sent out a fundraising appeal with the subject line “Breaking: Gag order is in effect.” He reposted comments from allies calling the order unconstitutional and described it as a “terrible thing” for democracy.
“Today really isn’t about gagging me. … It’s an attempt to gag the American people,” Trump wrote, before asking for “a contribution of any amount.”
Chutkan spent much of the hearing analyzing Trump’s rhetoric in recent weeks, dividing his attacks into five categories: those aimed at Washington, D.C., and potential jurors; Joe Biden and his administration; prosecutors; the court; and witnesses. Chutkan agreed that she would not impose additional restrictions on the first two categories, saying they were already covered by previous court orders and pretrial restrictions.
But Chutkan then walked attorneys through a lengthy exercise to discuss what limitations would be appropriate on Trump’s speech, given his status as a criminal defendant. She noted that courts have routinely agreed that defendants’ First Amendment rights must “yield” when their speech might corrupt or interfere with the administration of justice.
To underscore the point, Chutkan pressed Lauro on several hypothetical comments Trump might make about Barr — saying he should be “executed” for treason, saying he should keep his mouth shut or threatening his future in a potential second Trump administration. In each case, Lauro said such commentary would be First Amendment-protected speech and not in violation of any pretrial restrictions.
Chutkan rejected that rationale. “Because he’s running for president he gets to make threats?” the judge said incredulously.
“Mr. Trump is a criminal defendant. He is facing four felony charges. He is under the supervision of the criminal justice system,” she added. “He does not have the right to say and do exactly as he pleases. … No other criminal defendant would be allowed to do so and I am not going to permit it in this case.”
While Lauro insisted that Trump had complied fully with all existing orders in the case, he also seemed to warn the judge that she should not impose a gag order without thinking through the potential consequences.
“Is your honor going to put President Trump in jail?” Lauro asked bluntly at one point, calling it one of many questions posed by the “can of worms” created by the prosecution’s request.
Chutkan and lawyers for both sides acknowledged early in Monday’s court session that there is no controlling precedent in D.C. federal courts addressing how she should balance fair-trial concerns with a defendant’s ongoing political campaign.
However, Trump’s attorneys pointed to an appeals court ruling several decades ago overturning a broad gag order imposed on Rep. Harold Ford Sr. (D-Tenn.) during a federal prosecution against him for allegedly using his political influence to obtain bank loans.
After the 6th U.S. Circuit Court of Appeals found the order prohibiting all comments on the case to be too sweeping and said Ford was entitled to criticize the Republican administration for prosecuting him, Ford denounced the lead prosecutor as a racist.
Source: politico
Author: Kyle Cheney and Josh Gerstein
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