Judge issues partial gag order against Trump in federal Jan 6 case

Mr Trump will be barred from attacking prosecutors, court personnel or witnesses in the case pending against him in a Washington DC federal court

Andrew Feinberg
Monday 16 October 2023 19:53 BST
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US District Judge Tanya Chutkan on Monday imposed a partial gag order restricting Donald Trump’s ability to make “disparaging or “inflammatory” comments about people or entities involved in the election interference case pending against him in Washington DC, after a contentious hearing in which his attorneys repeatedly made political arguments in response to legal questions from the veteran jurist.

Judge Chutkan rejected arguments by Mr Trump’s attorneys who frequently cited his status a candidate for president — something she had called irrelevant to the proceedings on more than one occasion — and claimed putting any restrictions on what he can discuss as he campaigns would violate his right to free speech

She said that even though the defence had “sought to represent every statement as part and parcel of Mr. Trump's first amendment right to argue that this prosecution is politically motivated,” the First Amendment protections cited by Mr Trump’s counsel most “yield to the administration of justice and the protection of witnesses” with a “narrowly-tailored order to protect those interests”.

“This is not about whether I like the language Mr Trump uses. This is about language that presents a danger to the administration of justice,” she added.

Judge Chutkan said she would not prohibit Mr Trump from making statements about the jury pool in Washington DC, or on “criticising the government generally ... or the justice department” or statements characterising his prosecution as “politically motivated”.

But she said she would prohibit anyone involved in the case from “targeting” court personnel, prosecutors, or their families.

“Mr Trump can certainly claim he’s being unfairly prosecuted. But I cannot imagine any other criminal case in which the defendant is permitted to call the prosecutor ‘deranged’ or a ‘thug,’ and I will not permit it here,” she explained.

Continuing, she also said her order would prohibit statements about witnesses or potential witnesses, or about their testimony.

Citing the example of former vice president Mike Pence — a possible witness who is running against Mr Trump in the Republican presidential primary — she said he may “criticise his political rival” but “cannot make statements about Mr Pence’s role in the events underlying this case”.

She also said the ex-president’s past conduct and the tendency of those targeted by him to receive threats and harassment figured prominently in her decision to impose the order, which Mr Trump’s attorneys have vowed to appeal.

“My review of past statements made by Mr Trump in particular, as well as the evidence that they have led to harassment and threats for the people he has targeted persuades me that without this restriction, there is a real risk that witnesses may be intimidated or unduly influenced, and that other potential witnesses may be reluctant to come forward, lest they be subjected to the same harassment and intimidation,” she said.

Continuing, she said the ex-president “may still vigorously seek public support as a present presidential candidate, debate policies and people related to that candidacy, criticise the [Biden] administration and assert his belief that this prosecution is politically motivated”.

“But those critical First Amendment freedoms do not allow them to launch a pre-trial smear campaign against participating government staff, their families, or foreseeable witnesses, she said. “No other criminal defendant would be allowed to do so. I'm not going to allow it in this case”.

She added that his status as a presidential candidate “does not give him carte blanche to vilify and implicitly encourage violence against public servants for simply doing their job”.

Judge Chutkan’s ruling, which she delivered from the bench and promised to follow up with a written order, represents the most immediate jeopardy Mr Trump has been in since he launched his most recent campaign — and perhaps in his lifetime.

The judge reserved the right to bring up potential violations of her order sua sponte, or on her own initiative, and to bring prosecutors and defence counsel — as well as Mr Trump — back to her courtroom to argue whether any future statements by Mr Trump should result in sanctions for contempt of court.

In the case of flagrant or repeated violations of her order, the judge could go so far as to order Mr Trump’s bail revoked and remand him into custody pending trial.

In response to the decision, the ex-president’s campaign released an unsigned statement attributed to a “Trump spokesperson” which called Judge Chutkan’s decision “an absolute abomination and another partisan knife stuck in the heart of our Democracy” by President Joe Biden, even though Mr Biden had nothing to do with the ruling.

“President Trump will continue to fight for our Constitution, the American people’s right to support him, and to keep our country free of the chains of weaponised and targeted law enforcement,” the spokesperson added.

Mr Trump himself later weighed in on his Truth Social platform, writing that a “terrible thing happened to democracy today”.

The unprecedented ruling followed a contentious two-hour hearing that she’d called in response to a prosecution motion for the judge to enter a “narrowly tailored order” to ensure that Mr Trump’s public statements would not prejudice the case against him, which is scheduled to go to trial in March of next year.

Prosecutors had asked for the order last month, citing what they described as the ex-president’s efforts to “undermine confidence in the criminal justice system and prejudice the jury pool through disparaging and inflammatory attacks on the citizens of this District, the Court, prosecutors, and prospective witnesses” through his public statements and social media postings, arguing that Mr Trump’s rhetoric posed a “substantial likelihood of material prejudice” to the case against him.

They also argued that the ex-president has an “established practice of issuing inflammatory public statements targeted at individuals or institutions that present an obstacle or challenge to him,” and cited his efforts to undermine the results of the 2020 election and attack figures who stood up against those efforts.

“Since the indictment in this case, the defendant has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses. Like his previous public disinformation campaign regarding the 2020 presidential election, the defendant’s recent extrajudicial statements are intended to undermine public confidence in an institution—the judicial system—and to undermine confidence in and intimidate individuals—the Court, the jury pool, witnesses, and prosecutors,” they said.

In their written response, Mr Trump’s attorneys made the argument that what the department was asking violates the First Amendment to the US Constitution and described the prosecution motion as “unconstitutional prior restraint on President Trump’s political speech”.

They also argued that the government had not presented “one shred of evidence to demonstrate ... let alone enough to establish” that Mr Trump’s statements, however inflammatory, represented a “clear and present danger” to the administration of justice in the case against him.

After quickly dispensing of another prosecution request by denying to order Mr Trump’s defence team to pre-clear any surveys of potential jurors with the court, Judge Chutkan turned to the motion for a gag order on Mr Trump.

Prosecutor Molly Gaston opened the government’s arguments by stressing that the “sole objective” of the orders is to protect the fair administration of justice — not to censor Mr Trump’s political speech or hinder his ability to campaign, citing court papers in which the prosecutors said they were asking for a “narrow, well-defined restriction that is targeted at extrajudicial statements that present a serious and substantial danger of materially prejudicing this case”.

She also pointed to a recent statement by a spokesperson for Mr Trump who’d said the ex-president is attempting to “fight” alongside his lawyers “in the court of public opinion” and denied that prosecutors want to stop Mr Trump from campaigning effectively.

“The government’s sole objective with this motion is to ensure the fair administration of justice...by preventing extrajudicial statements that prejudice the trial. We have no interest in stopping the defendant from running for office or defending his reputation,” she said.

When Mr Trump’s attorney, John Lauro, stepped up to oppose the prosecution’s request, he began his arguments by characterising the proposed order as a “censorship order” being imposed by the Biden administration.

Judge Chutkan interjected almost immediately.

“Let me stop you right there,” she said. “Mr Trump is a criminal defendant. He is facing four felony charges. He is under the supervision of the criminal justice sytem and he must comply with the conditions of release. He does not have the right to say and do exactly as he pleases”.

When Mr Lauro continued by stating that the conditions of release Judge Chutkan had imposed during Mr Trump’s arraignment in August were sufficient and suggesting that the ex-president had been abiding by them, she actually laughed out loud before replying: “I’m going to take issue with that”.

Over and over, the defence attorney — himself a former federal prosecutor — pushed back on suggestions that any restrictions could be placed on Mr Trump’s ability to attack or disparage witnesses or other figures connected with the case against him, even when Judge Chutkan raised the issue of a case when a gag order had actually been imposed by the ex-president.

Citing the “deeply disturbing” example of Mr Trump using his Truth Social platform to attack a law clerk working for the judge presiding over a civil case against him in New York — and the judge’s decision to prohibit Mr Trump from posting about court personnel, Judge Chutkan asked Mr Lauro whether a similar order would be permissible in the case she is presiding over.

She also pressed him on whether it was acceptable for Mr Trump to call the prosecutor over seeing the case, Special Counsel Jack Smith, a “thug”.

He repeatedly declined to directly answer her questions, instead choosing to argue that the case is “unprecedented” because of his client’s status as a political opponent of the incumbent president.

“What the government is proposing here is an order not just directed against President Trump, but against the American electorate that wants to hear from President Trump ... what's happening in this court right now will affect this country for years to come ... this is the first time we've had a sitting administration prosecute a political opponent,” he said.

At that point, Judge Chutkan interrupted him to chide him for making that unrelated argument and suggested that the attorney “obviously” had “an audience other than [her] in mind”.

“I have heard you say now, multiple times that this is on an unprecedented prosecution. And what I want you to do is to answer my question as to why a criminal defendant shouldn’t be allowed to call a prosecutor thug,” she said.

“There are many words you can use to criticise a prosecution or a prosecutor. But when you start using language like ‘thug’ to describe someone doing their job, that wouldn't be allowed by any other defendant. And just because this defendant happens to be running a political campaign does not give him the right to use any kind of language that he wants,” she added.

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