WASHINGTON — The request by prosecutors that a judge impose a gag order on former President Donald Trump in the federal election subversion case presents a thorny conflict between the scope of his First Amendment rights and fears that he could — intentionally or not — spur his supporters to violence.
There is little precedent for how the judge overseeing the case, Tanya Chutkan, should think about how to weigh strong constitutional protections for political speech against ensuring the functioning of the judicial process and the safety of the people participating in it.
It is one more example of the challenges of seeking to hold to account a norm-shattering former president who is being prosecuted in four cases as he makes another bid for the White House with a message that his opponents have weaponized the criminal justice system against him.
“Everything about these cases is making new law because there are so many gaps in the law,” said Paul Rothstein, a law professor at Georgetown University and a criminal procedure specialist. “The system is held together by people doing the right thing according to tradition, and Trump doesn’t. He jumps into every gap.”
Citing threats inspired by the federal indictments of Trump, a recently unsealed motion by special counsel Jack Smith has asked Chutkan to order the former president to cease his nearly daily habit of making “disparaging and inflammatory or intimidating” public statements about witnesses, the District of Columbia jury pool, the judge and prosecutors.
A proposed order drafted by Smith’s team would also ban Trump and his lawyers from making — or causing surrogates to make — public statements “regarding the identity, testimony or credibility of prospective witnesses.”
It would allow Trump to say he denies the charges but “without further comment.”
Chutkan, of the U.S. District Court in Washington, has ordered Trump’s legal team to file its opposing brief by Monday. A spokesperson for Trump has called the request “blatant election interference” and a cynical attempt to deprive the former president of his First Amendment rights.
Gag orders limiting what trial participants can say outside of court are not uncommon, especially to constrain pretrial publicity in high-profile cases. Courts have held that orders banning participants from certain public comments are constitutional to avoid prejudicing a jury, citing the public interest in the fair and impartial administration of trials.
The context of the gag request for Trump, though, is different in fundamental ways.
Smith’s filing nodded to the potential for Trump’s statements to influence the eventual jury in the case, which is scheduled to go to trial in March. But the request focused primarily on a different concern: that Trump’s angry and vengeful statements are putting people in danger now.
The motion cited “multiple threats” to Smith. It noted that another prosecutor, Jay Bratt, had been subject to “intimidating communications” after the former president targeted him in “inflammatory public posts,” falsely saying Bratt had tipped off the White House before Trump’s indictment in the case accusing him of mishandling classified documents.
And it cited a Texas woman who has been charged with making death threats to Chutkan last month. She left the judge a voice message using a racist slur, court filings show, and said, “You are in our sights. We want to kill you.”
“If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, bitch,” the message said, adding that “you will be targeted personally, publicly, your family, all of it.”
Prosecutors connected their request to the threats and harassment that election officials and other people carrying out election-related duties experienced after Trump attacked them in late 2020 as part of his false claims that the election had been stolen.
“The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets,” the motion said, adding, “It is clear that the threats are prompted by the defendant’s repeated and relentless posts.”
In that sense, the request for the gag order was as much about so-called stochastic terrorism — the idea that demonizing someone through mass communication increases the chances that a lone wolf will be inspired to attack the target — as it was about the more traditional concern of keeping a jury from being influenced by statements outside court.
The request carries the risk of playing into Trump’s hands.
The former president and his defense have made clear that they want people to think the case is about whether he had a First Amendment right to say whatever he wanted about the election. Smith sought to head off that move by acknowledging in the indictment that Trump had a right to lie to the public and by not charging him with inciting the Capitol riot.
But the request is directly about what Trump is allowed to say. Moreover, it has given him more fodder to portray the case as intended to undercut his campaign — and, if he is under a gag order and loses again in 2024, to once again tell his supporters that the election was rigged.
“They want to see if they can silence me. So the media — the fake news — will ask me a question. ‘I’m sorry; I won’t be able to answer’ — how do you think we do in that election?” Trump said at a summit of religious conservatives. “So we are going to have a little bit of a fun with that, I think. That’s a tough one. Can you imagine?”
Implicit in the ways he could “have a little bit of a fun” is the question of how Chutkan could enforce any such order if Trump skirted its edges or even boldly defied its limits. It would be one thing to impose a fine, but if he refused to pay or to tone down his statements, a next step for a judge in a normal case would be to order imprisonment.
Any such step in this case would be legally and politically explosive.
At a hearing last month, Chutkan vowed to “take whatever measures are necessary to protect the integrity of these proceedings” and warned lawyers for Trump that “even arguably ambiguous statements from parties or their counsel, if they could reasonably be interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process.”
The judge also suggested that she could speed up the trial date in response to inflammatory statements.
Most cases about gag orders affecting criminal defendants have focused on limits imposed on what their lawyers can say — in part because defense lawyers typically insist their clients say nothing in public. That is one of many ways Trump operates from a different playbook.
In a 1991 case, the Supreme Court upheld banning defense lawyers from making comments outside court that are likely to prejudice a jury, citing “the state’s interest in fair trials.”
But the Supreme Court also suggested that greater speech restrictions might be permissible on lawyers because they are officers of the court. It has never addressed what standard a gag order on a defendant must meet. A handful of appeals courts have addressed gag orders imposed on defendants and set different standards.
Margaret Tarkington, a law professor at Indiana University, Indianapolis, and a specialist in lawyers’ free-speech rights, predicted that any gag order would be more likely to survive on appeal if Chutkan banned Trump only from attacking witnesses and jurors. The First Amendment provides particularly strong protections for criticism of government officials, she noted.
Still, Tarkington acknowledged that a gag order that still permitted demonizing the judge and prosecutors would not address much of the concerns that prosecutors are raising. She also said past gag order cases offered few guideposts because Trump is such a unique figure: His megaphone and its potential effect on his more extreme supporters — as demonstrated by the Capitol attack on Jan. 6, 2021 — puts him in a different realm.
“It’s a really hard argument in normal circumstances to say the government, who is prosecuting someone, can shut them up from defending themselves in public,” Tarkington said. “What makes this backward from everything else is that normally, in every criminal prosecution I can think of, the power imbalance is that the state has all the power, and the defendant has none. But in this case, you have a defendant who has very significant power.”
In their motion, prosecutors also cited an appeals court ruling in 2000 that involved a rare example of a defendant who challenged a gag order. A judge had prevented all trial participants from making statements outside the court “intended to influence public opinion” about the case’s merits, and the defendant, an elected insurance commissioner in Louisiana named Jim Brown, wanted to be exempted. But the appeals court upheld it.
The motion said the Brown precedent showed that the reasoning of the 1991 Supreme Court case upholding gag orders on defense lawyers “applies equally” to defendants. But prosecutors did not mention that the gag order was lifted for about two months to avoid interfering with Brown’s reelection campaign and reimposed only after the election was over.
“Brown was able to answer, without hindrance, the charges of his opponents regarding his indictment throughout the race,” the appeals court noted, adding, “The urgency of a campaign, which may well require that a candidate, for the benefit of the electorate as well as himself, have absolute freedom to discuss his qualifications, has passed.”
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