Request for Trump gag order raises free speech dilemma
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.”