By Sam Dorman and Catherine Yang
WASHINGTON—Judge Tanya Chutkan, presiding over the case against former President Donald Trump for allegedly interfering in the 2020 presidential election, ordered certain restrictions on what President Trump can say in relation to his case after hearing arguments on the morning of Oct. 16.
Judge Chutkan said she would not impose restrictions on statements he makes about Washington, D.C., or criticism of the government, including the Biden administration and the Department of Justice (DOJ). However, President Trump will be prohibited from posting statements attacking special counsel Jack Smith, his staff, Judge Chutkan’s staff and other court personnel, and the families of any of these people.
He is also limited in part about what he can say about potential witnesses; for example, he may make posts about former Vice President Mike Pence, but not in regard to underlying events connected to his case.
The judge said she will consider sanctions if President Trump violates the order.
This is a much narrower order than what the prosecutors had proposed, and it contains similarities to a limited gag order a New York judge imposed on President Trump recently during a civil trial.
After the decision, a spokesperson for President Trump issued a statement: “Today’s 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 leading candidate for the Presidency in 2024, and the most popular political leader in America, President Donald J. Trump. 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 weaponized and targeted law enforcement.”
Mr. Smith was appointed special counsel last November to investigate matters related to the Jan. 6, 2021, Capitol breach, and this summer he unsealed an indictment against President Trump on four counts.
The prosecutors are arguing that President Trump is unfairly influencing the jury pool and had proposed a gag order that would limit what he can comment on related to the case and what kind of polling he can do in Washington, D.C. President Trump’s attorneys argued that the proposed order is not at all “narrowly tailored” and violates his First Amendment rights.
The judge dismissed the prosecutors’ motion to impose survey requirements should President Trump want to conduct any polling in Washington, D.C. His team agreed they would give the court notice if they conducted any surveys.
However, the gag order as proposed would be overly broad, the judge suggested, bringing up statements the former president has made and asking both parties to weigh in on whether they would be prohibited.
Prosecutors claimed that their order would not prevent President Trump from campaigning or defending himself, but defense attorneys argued that their language for the proposed gag order was overly broad and did just that.
The prosecutors cited Gentile v. State Bar of Nevada, in which the U.S. Supreme Court ruled that limiting defense counsel’s speech did not run afoul of the First Amendment. Local court law would also permit the judge to limit the attorneys’ speech, though it doesn’t directly address the defendant, President Trump.
Prosecutor Molly Gaston said the government had no interest in stopping President Trump’s campaign, but the sole objective of the motion was to ensure “fair” proceedings. She argued that derogatory, inflammatory, and intimidating statements attacking witnesses could influence not only the witness, but also the public, and by extension potential jurors.
The judge asked the prosecution what they would define as “disparaging” and “inflammatory” and how that is different from statements attacking witnesses, which is already illegal.
Ms. Gaston said the government was referring to commonly understood dictionary definitions; for instance, inflammatory statements would consist of those inflaming anger and animosity.
The judge was concerned with the use of the word “fair,” which may be too broad and prevent the order from being “narrowly tailored,” as the defense and prosecution could have different definitions of the term.
The prosecution doubled down on the argument that President Trump is trying to influence the case in the court of public opinion, prejudicing potential jurors in his favor.
Judge Chutkan then pointed out that the proposed order prevents only disparaging statements and doesn’t cover praise, which may also influence the public or jury.
Trump attorney John Lauro said his client is in the middle of a campaign. He argued that the DOJ is trying to limit President Trump’s speech, which has the highest level of constitutional protection. The judge reminded him that as a criminal defendant, President Trump agreed to comply with conditions of release, which means he doesn’t have the right to do and say exactly as he pleases.
Mr. Lauro agreed his client is complying with the conditions of release, but pointed out that President Trump, a political candidate, should be able to speak freely on the issues of the day, which include the role of the DOJ and the appointment of judges.
Every single issue related to this case also has political implications, he said, adding that the prosecutors chose to bring the case in the middle of the campaign and have it “inextricably intertwined” with the campaign, which the judge scheduled for trial one day before Super Tuesday, when more than a dozen states hold their Republican primaries.
“This trial will not yield to the election cycle,” the judge said.
She then asked Ms. Gaston what the prosecution proposes as penalties if President Trump violates the proposed gag order.
The prosecution said the court could take action voluntarily and referred to the options the judge has proposed, including admonishing the defendant, financial sanctions, or modifying the conditions of release.
Mr. Lauro pointed out that the order was “asymmetrical” and “unlawful” because it would expressly prohibit President Trump from criticizing candidates running against him, just because of their involvement in the case.
He added that such an order would be impossible to enforce and that there are practically no limits on what could be prohibited.
The judge defined five categories of statements that would be limited for President Trump: about the jury pool, about the Biden administration DOJ, about Mr. Smith and his staff, about judges and their staff, and about political witnesses.
The prosecution accused Mr. Lauro of trying to say that President Trump was above the law and insisted that the order does not prevent a political candidate from campaigning, only from using his campaign to “broadcast” statements about the case.
The judge also said she was concerned that the proposal was overly broad. She asked the prosecution to clarify whether President Trump’s statements calling President Joe Biden and the DOJ “crooked” would be prohibited, because it could be considered “disparaging.” Mr. Lauro also asked whether saying President Biden brought the prosecution would be prohibited.
Ms. Gaston said the statement would be prohibited in Mr. Lauro’s example, because that comment would imply that President Biden directed the prosecution, which she said was false.
The judge pointed out that the defense could argue that the DOJ is part of the executive branch, which has already been noted in President Trump’s campaign, and asked whether his arguing that the case is politically motivated would also be prohibited. She also pointed out that President Biden is not a party, witness, or juror, and so the potential gag order submitted by the government would not apply. However, she also seemed skeptical of allowing President Trump to say his prosecution was politically motivated.
Mr. Lauro then argued that in precedent cases, the defendant was allowed to call the prosecutor racist, and that even a criminal defendant has the right to criticize the prosecution. He pointed out that when Mr. Smith first announced the indictment, he made statements that President Trump was linked to the violence of the day, which was not in the indictment, and has thus already tried to influence the jury pool.
He argued that the electorate had the right to hear from the candidate and this was an attempt to try to take him out of the election cycle, prompting the judge to tell him to tone it down.
Other Gag Order
The defense seemed to be on shaky ground once specific posts of President Trump’s were brought up.
The former president is also currently on trial in New York in a civil fraud case, where he had made a social media post targeting the judge’s clerk. The post was later deleted after the court ordered it, imposing a narrow gag order that prevented any of the parties from attacking the judge’s staff.
Judge Chutkan said that post was highly concerning and suggested he was putting court staff in danger.
Mr. Lauro was asked whether that post should be acceptable, to which he responded that he would advise his client not to do something like that.
Judge Chutkan said that was not what she asked, and Ms. Gaston said a clear order was needed, not just Mr. Lauro’s advice.
President Trump had also commented on former Attorney General Bill Barr and retired General Mark Milley. Mr. Lauro argued these weren’t threats, with which the judge disagreed.