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.
Smith’s prosecutors argued 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.”
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.
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.
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.
Any gag imposed is expected to be very limited.
The politics of any legal action involving Trump are hard to miss. Rep. Marjorie Taylor Greene 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.
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 argued 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.