Judge Imposes Narrow Gag Order in Trump Jan. 6 Case
WASHINGTON — Former President Donald Trump is now subject to a partial gag order barring him from verbal and written attacks on Special Counsel Jack Smith, his staff, witnesses and potential witnesses in his election conspiracy case.
In handing down her decision, U.S. District Judge Tanya Chutkan said she would not allow Trump or anyone else involved in the case to engage in a smear campaign intended to influence its outcome.
“No other criminal defendant would be allowed to do so,” she said.
Though Chutkan’s ruling technically applies to everyone involved in the case, she repeatedly referred to Trump’s comments about the special prosecutor, as she explained what is and what isn’t covered by the order.
Chutkan denied prosecutors’ request for a broader gag order, ruling that Trump would not be restricted from making statements that criticize the Justice Department or the government’s case against him in a general sense.
She also said he would not be admonished for making claims that his prosecution is politically motivated by the Biden administration.
Announcing her decision after a brief recess following a two-hour hearing, Chutkan said there is a “mistaken understanding” that the First Amendment is “an absolute right” in all instances.
Its limits come into play, she said, when it comes to “the administration of justice and the protection of witnesses.”
“This is not about whether I like the language Mr. Trump uses,” she said, suggesting it’s about whether justice can be administered against a backdrop of his constant attacks.
Prosecutors had requested that a gag order be imposed after Trump repeatedly disparaged Smith and prosecutors, arguing the former president and current presidential candidate has been using his campaign as a way to try the case in the court of public opinion.
Throughout the hearing Trump’s lead attorney John Lauro vehemently opposed the imposition of the gag order, arguing that if one were imposed it would be a direct violation of Trump’s First Amendment rights.
In addition, he said, as political speech, carried out in the course of a presidential campaign, his comments should be given an even higher standard of protection.
At one point Lauro even suggested that having a “free society” means “we have to accept colorful language” from time to time.
Chutkan responded by saying, “so if there’s a little violence or threats, that’s the price we pay?”
Lauro seemed taken aback.
“Absolutely not,” he said. “Nobody has suggested Trump suggested violence or threats against anyone. But the special counsel said that what Trump was doing was making statements that could intimidate witnesses and prejudice potential jurors.”
At another point in the proceedings, Lauro suggested he could merely ask his client to tone down his rhetoric in certain respects.
Chutkan didn’t buy it.
“We are in here today because of statements he’s made, not just before the government filed its motion but after, right up to last night,” she said. “So I’m not confident that without some kind of a restriction, we won’t be here all the time.”
Throughout the hearing, Chutkan sprinkled her questions with hypotheticals.
At one point she asked Lauro whether Trump’s repeated attacks on Smith, calling him a “thug,” “suggest someone should get him off the street?”
Lauro pushed back, saying there’s no proof of any imminent risk stemming from Trump’s comments.
Chutkan moved on to Trump’s recent assertion that Gen. Mark Milley, the former chairman of the Joint Chiefs of Staff, should be executed for actions he took to assure China the U.S. wasn’t about to attack it as a ploy to keep the ex-president in office.
Lauro claimed Trump wasn’t really calling for Milley to be executed, and that that interpretation is taking it a bridge too far, he said.
Chutkan said Trump’s posts about Milley appeared to be similar to those about Smith.
“They seem to be inviting threats by others,” she said.
Lauro argued the possible conduct of others is not a valid reason for gagging Trump.
Finally, Chutkan posed a series of hypotheticals revolving around Trump’s comments about former Attorney General William Barr — ranging from telling his former chief law enforcement officer to keep his mouth shut to calling him “slimy.”
Lauro said whether that language should be protected or not depended entirely on the context, and that regardless, there has been no indication that Barr has been intimidated from speaking about Trump.
Chutkan then asked Lauro whether it would be lawful, under certain conditions, if Trump said Barr should be executed for treasonous acts.
Lauro said he wouldn’t advise it. Chutkan asked, “Why?”
Lauro said as an officer of the court, he doesn’t believe such a statement is needed in the context of a court proceeding because it is already covered by the rules of the court.
When Chutkan asked Lauro whether such a statement was a threat, Lauro again pushed back, saying it was not.
Prosecutor Molly Gaston responded by saying in the government’s view, all of the judge’s hypotheticals would pose problems.
“Making threats, intimidating people, goes to topics of testimony,” Gaston said.
“The other problem is that attacks invite responses,” she said. “So everything gets aired publicly, instead of at trial, and that results in a chill of other witnesses.”
In a statement attributed to a “Trump spokesperson,” the Trump campaign said, “Today’s decision is an absolute abomination and another partisan knife stuck in the heart of our Democracy by crooked Joe Biden, who was granted the right to muzzle his political opponent, the leading candidate for the presidency in 2024, and the most popular political leader in America, President Donald J. Trump.
“President Trump will continue to fight for our Constitution, the American people’s right to support him, and to keep our country free of the chains of weaponized and targeted law enforcement,” the statement said.