WASHINGTON —
U.S. District Judge Tanya Chutkan granted special counsel Jack Smith’s request Monday for a limited gag order to prevent former President Trump from attacking prosecutors, witnesses and court officials involved in his federal case over attempts to overturn the 2020 election.
Chutkan prohibited all parties in the case, including Trump, from making or reposting any statements publicly targeting Smith or his staff and the court or staff, and prohibited statements about witnesses or their expected testimony.
Chutkan said Trump can continue to campaign for the Republican nomination and say he believes the case is politically motivated, but he is not allowed to “launch a pretrial smear campaign” to intimidate or discredit witnesses or staff.
“This is not about whether or not I like the language Mr. Trump uses,” Chutkan said. “This is about language that presents a danger to the administration of justice. His presidential candidacy does not give him carte blanche to vilify public servants who are simply doing their jobs.”
Chutkan said that Trump’s free-speech rights aren’t greater than those of other criminal defendants just because he is making another bid for the White House.
“I cannot imagine any other criminal case where a defendant is allowed to call a prosecutor deranged or a thug. No other defendant would be allowed to do it, and I’m not going to allow it in this case.”
Smith’s prosecutors asked for the order, arguing that Trump’s barrage of social media and campaign trail claims may intimidate witnesses, increase the chance of violence and taint the Washington, D.C., jury pool ahead of Trump’s March 4 trial start.
Chutkan heavily questioned Trump’s lawyer John Lauro about the language Trump has used online and in interviews in the last few months, including calling Smith “deranged” and his staff “thugs.”
“If you call certain people thugs enough times, Mr. Lauro, doesn’t that suggest that someone should get them off the streets?”
Lauro responded that Trump is entitled under the 1st Amendment to campaign and speak about the news of the day.
“We are talking about a censorship order in this case that is unheard of in our constitutional order,” Lauro said. Chutkan responded dryly, “There are a lot of things in this case that are unheard of.”
Chutkan opted not to accept Smith’s request to impose additional restrictions on what Trump can say about Washington or the jury pool, and to not impose additional restrictions on criticizing the government, Department of Justice’s handling of the case or Trump’s belief that the case is politically motivated.
While the specific wording of the order has not yet been released, Chutkan said Trump can campaign against former Vice President Mike Pence, who is also running for the nomination, but cannot comment on his role in the case or the substance of his testimony.
She said she will consider sanctions as remarks potentially in violation are brought before her.
Trump is charged with engaging in conspiracies to overturn the results of the 2020 election in order to stay in power despite having lost to Joe Biden. The charges are conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, conspiracy against rights, and obstruction of or attempting to obstruct an official proceeding. He has pleaded not guilty.
Chutkan warned Trump’s lawyers in August that his out-of-court commentary about the upcoming trial could cause her to move up the trial date in order to prevent the jury pool from being tainted. Prosecutors argued that the warning has not stopped the former president from attacking known witnesses and court officials.
“We are in here today not just because of statements he made before the government’s motion, but after, up to last night!” Chutkan said.
In a Truth Social post Sunday, Trump called Smith a “Leaking, Crooked and Deranged Prosecutor… who has a terrible record of failure” and Chutkan a “highly partisan Obama appointed Judge… who should recuse herself based on the horrible things she has said.”
Trump’s lawyers argued that the conditions of his release included sufficient limits on his speech to protect the trial.
“What you have put in place is working,” Lauro said. Chutkan laughed in response. “I have to take issue with that.”
Lauro said that prosecutors haven’t shown that any witness has been intimidated. Chutkan noted that Smith has presented evidence of the effect of Trump statements on witnesses in other matters.
Most recently Trump suggested that former chairman of the Joint Chiefs of Staff Gen. Mark Milley deserves to be put to death.
“This guy turned out to be a Woke train wreck who, if the Fake News reporting is correct, was actually dealing with China to give them a heads up on the thinking of the President of the United States,” Trump wrote on his social platform Truth Social. “This is an act so egregious that, in times gone by, the punishment would have been DEATH! A war between China and the United States could have been the result of this treasonous act.”
“We both know that the tweet or whatever it was about Gen. Milley was a threat and it was meant as a threat,” prosecutor Molly Gaston said. Lauro said Trump has a right to talk about what kind of person he would pick for such a post.
Trump and his lawyers have framed the potential order as an issue of free speech and warned that restraining his speech would unfairly favor his political opponents. Trump, the leading candidate for the Republican presidential nomination, has also used the possibility of a gag order as a campaign and fundraising tactic.
“They want to take away my First Amendment rights, and my ability to both campaign and defend myself. In other words, they want to cheat and interfere in the 2024 Presidential Election,” Trump said in that same post Sunday night.
In a statement, Trump’s campaign called the order “an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden.”
Lauro complained that President Biden would not be subject to a gag order. Chutkan responded that “Joe Biden is not a party to this case. He is not under release conditions.”
Gaston noted that the Justice Department isn’t asking that Trump not be able to campaign.
“He could criticize President Biden to his heart’s content, Your Honor, because President Biden is not a party to this case,” Gaston said.
The politics of any legal action involving Trump are hard to miss. Rep. Marjorie Taylor Greene (R-Ga.) tweeted that she was attending the hearing “as a member of the Oversight Committee to see if Judge Chutkan is really going to destroy the 1st amendment — free speech rights of former President Trump.”
Trump is under a partial gag order by the judge overseeing a New York civil case over whether he and his family inflated the value of properties they owned in order to secure more favorable loans. The gag was imposed after Trump posted a photo of a court clerk on social media and said she was running his case.
When Chutkan, who has repeatedly been the subject of Trump’s criticism on social media, questioned whether she should impose a similar order preventing Trump from targeting her or her staff, Lauro said that he would pass along her admonishment to Trump, and said that such a post would not be made in this case.
“The court’s instructions and admonition is heard by all,” Lauro said.
Gaston disagreed, saying a gag order is necessary and that there has already been a criminal threat to the court.
Chutkan started the hearing by denying a special counsel motion to impose requirements on potential jury surveys by the Trump legal team beyond a notice of intent to the court before they proceed. She said that she did not see a reason to micromanage, but that she would need to review their methodology and questions if the defense makes a motion to move venues.
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