Judge weighing gag order on Trump in 2020 election case says prosecutors’ proposal may be too broad
By MICHAEL KUNZELMAN, LINDSAY WHITEHURST and ALANNA DURKIN RICHER Associated Press
WASHINGTON (AP) — The judge overseeing Donald Trump’s federal election interference case forcefully pushed back against the defense’s claims that a proposed gag order would unfairly censor the Republican’s political speech, but she also suggested on Monday she believed prosecutors’ request could be too broad.
U.S. District Judge Tanya Chutkan is considering a request to impose the narrow gag order aimed at reining in Trump’s incendiary rhetoric about potential witnesses, prosecutors and others involved in the case. In seeking the order, special counsel Jack Smith’s team has accused the 2024 GOP presidential front-runner of using online attacks to try to undermine the public’s confidence in the justice system and taint the jury pool.
Trump’s lawyer John Lauro accused prosecutors of “seeking to censor a political candidate in the middle of a campaign.” But the judge shot back that Trump “does not have a right to say and do exactly as he pleases.”
“You keep talking about censorship like the defendant has unfettered First Amendment rights. He doesn’t,” Chutkan said. “We’re not talking about censorship here. We’re talking restrictions to ensure there is a fair administration of justice on this case.”
Chutkan, who was appointed by President Barack Obama, repeatedly warned Trump’s lawyer to keep politics out of the courtroom, and she cut him off when he suggested the case was politically motivated. “Obviously you have an audience other than me in mind.” she told him.
Chutkan, however, told prosecutors she has “some concerns” about the breadth of the order they are seeking.
Prosecutor Molly Gaston told the judge Trump’s lawyers are arguing their client is “above the law” and not subject to the same rules as other defendants. Gaston said Trump knows that his posts “motivate people to threaten others,” and she argued those can not only pollute the jury pool but also can chill witnesses.
“We have no interest in stopping the defendant from running for office or defending his reputation, nor does our proposed order do this,” she said.
Lauro said Trump had not violated his pretrial conditions, and those were enough to keep him in check for the future, telling the judge: “What you have put in place is working.” Chutkan burst out laughing.
“I’m going to have to take issue with that,” the judge said, reciting a slew of Trump remarks about the jury pool in Washington, Smith and his staff and others.
Chutkan also read aloud statements Trump has made about her, deriding her as a “radical Obama hack.” Although she said she is “less concerned” about statements that Trump has made about her, she said his free speech doesn’t extend to language that knowingly invites threats and harassment of “people who are simply doing their jobs.”
The gag order proposal underscores the unprecedented complexities of prosecuting the GOP presidential primary front-runner, who has made the line of attack central to his campaign. And it presents the biggest test yet for Chutkan, who must balance Trump’s First Amendment right to defend himself publicly with the need to protect the integrity of the case.
It’s the beginning of what could be an extraordinary fight over what limits can be placed on the speech of a defendant who is also running for America’s highest public office. Any gag order Chutkan imposes is likely to be challenged on appeal and may ultimately end up before the U.S. Supreme Court, legal experts have said.
While ending the stream of Trump’s harsh language may make the case easier to manage, it could also fuel Trump’s claims of political persecution. Trump’s campaign has already seized on the proposed gag order in fundraising appeals, and Trump has falsely characterized it as an attempt to prevent him from criticizing President Joe Biden.
Trump’s defense has called the gag order request unconstitutional and a “desperate effort at censorship.”
The hearing comes on the heels of the judge overseeing Trump’s civil fraud trial in New York imposing a more limited gag order prohibiting personal attacks against court personnel following a social media post from Trump that maligned the judge’s principal clerk.
Prosecutors are asking Chutkan to bar Trump and lawyers from making statements “that pose a substantial likelihood of material prejudice to this case,” including inflammatory or intimidating remarks about witnesses, lawyers and other people involved in the case.
It’s unclear whether Chutkan will issue a ruling on Monday. Chutkan has said Trump does not have to attend the hearing.
It’s the first time the lawyers will appear before Chutkan since she denied Trump’s request to recuse herself from the case, which alleges Trump illegally schemed to overturn his 2020 election loss to Biden. Trump has denied any wrongdoing.
The defense had claimed Chutkan’s comments about Trump in other cases raised questions about whether she had prejudged his guilt. But Chutkan said her comments were mischaracterized and there was no need for her to step aside.
Trump has frequently used social media to attack Chutkan, prosecutors, likely witnesses and others despite warnings from the judge that inflammatory comments could force her to move up the trial currently scheduled to begin in March.
Prosecutors noted in a recent motion that Trump’s incendiary rhetoric has continued even after their initial gag order request. They cited critical comments about witnesses referenced in the indictment — such as former Attorney General William Barr — and a social media post suggesting that Mark Milley, the retired chairman of the Joint Chiefs of Staff, had committed treason and should be executed.
Prosecutors have said their proposal would not impact prevent him from publicly declaring his innocence. In court papers, they wrote that Trump is demanding “special treatment” by claiming “he should have free rein to publicly intimidate witnesses” and disparage others involved in the case.
“In this case, Donald J. Trump is a criminal defendant like any other,” Smith’s team wrote.
Richer reported from Boston.