Washington — A federal judge in Washington is set to hear arguments Monday from attorneys representing former President Donald Trump and prosecutors in special counsel Jack Smith’s office over whether Trump should be limited in what he can say about the federal case involving the 2020 election.
Prosecutors asked D.C. District Judge Tanya Chutkan last month to impose a “narrowly tailored” order to prevent the former president from making “extrajudicial statements that present a serious and substantial danger of materially prejudicing this case.”
Citing numerous tweets and other public statements dating back to the 2020 presidential election, the special counsel argued that Trump has an “established practice” of targeting those who challenge him.
“The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets,” prosecutors said in court documents, adding that Trump had publicly lambasted potential trial witnesses and the special counsel in an alleged attempt “to prejudice the public and the venire in advance of trial.” The “venire” is the jury pool.
Smith’s prosecutors argued a limited gag order should be imposed over all parties involved in the case to prevent the former president from potentially tainting the jury pool ahead of trial, since court rules usually require certain limitations on what jurors know about a case before being seated at trial.
“The defendant should not be permitted to continue to try this case in the court of public opinion rather than in the court of law, and thereby undermine the fairness and integrity of this proceeding,” the special counsel wrote in court documents. In a supplemental filing, prosecutors cited Trump’s social media post in which he accused former Chairman of the Joint Chiefs of Staff Mark Milley — who was also a witness in the grand jury investigation — of treason.
Scott Fredericksen, a former federal prosecutor and independent counsel, said that while the request from prosecutors is a reasonable one, the factors the judge will have to consider are far more complex and prosecutors likely know they won’t get everything they’re asking for.
“It is reasonable for a prosecutor to make a motion like this when there is legitimate concern over both the sanctity of the trial, witnesses, jurors, and the process,” he said. He pointed out, however, that Chutkan must consider the First Amendment issues raised by Trump’s attorneys.
Trump’s defense team pushed back against Smith’s request for a narrow restriction in court filings last month, calling the special counsel’s motion “transparent gamesmanship.”
The former president’s attorneys argued that the reasoning behind the proposed gag limitations was not substantiated by evidence and that the public statements in question actually posed a danger to the administration of justice and were an attempt to “silence” Trump during his presidential campaign.
“The prosecution may not like President Trump’s entirely valid criticisms, but neither it nor this Court is the filter for what the public may hear,” Trump’s defense attorneys argued, pushing Judge Chutkan to reject the gag order request on First Amendment grounds.
Judge Chutkan has “a difficult balancing to do between exercising appropriate control to make sure witnesses are not intimidated, jurors feel safe, without violating the president’s first amendment rights,” Fredericksen said.
According to Fredericksen, Chutkan — a former public defender — is likely not only weighing the unprecedented issue before her, but also the impact her ruling may have on any future appeal. If convicted, Trump may pursue an appeal.
“She is not a prosecutor’s judge. She is her own judge. She is very strong and smart and savvy, and she is not going to issue any order that leaves the case open to being reversed later,” Fredericksen predicted.
Prosecutors said that the restrictions they seek limit public statements pertaining only to the identity or credibility of potential witnesses and “statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.”
Trump’s attorneys say the proposed order is “sweepingly broad” and alleged the conditions sought by Smith’s team would be expanded and therefore hamper the former president’s ability to campaign freely.
The former president was indicted by a federal grand jury on four charges related to his alleged attempts to reverse the 2020 election results and has pleaded not guilty.
Chutkan previously rejected a motion by Trump’s attorneys to recuse herself from the case and has in recent rulings mostly rebuffed attempts by the defense to substantially delay or upend proceedings.
The trial is currently set for March 2024, in the middle of the presidential primary elections.
