Inland Valley Daily Bulletin

Request for Trump gag order raises free speech dilemma

- By Charlie Savage

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 normshatte­ring 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.

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 electionre­lated 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.”

 ?? THE NEW YORK TIMES ?? Former President Donald Trump, a candidate for the Republican presidenti­al nomination, speaks in Washington earlier this month.
THE NEW YORK TIMES Former President Donald Trump, a candidate for the Republican presidenti­al nomination, speaks in Washington earlier this month.

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