In asking for a gag order in the election interference case in D.C., Smith and other prosecutors argued, “Since the indictment in this case, the defendant has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis.” They added, “The defendant’s recent extrajudicial statements are intended to undermine public confidence in an institution — the judicial system — and to undermine confidence in and intimidate individuals — the court, the jury pool, witnesses and prosecutors.”
Smith and his team delineated statements that fit each category. They asked the court to “issue a special order governing such matters as extrajudicial statements by parties, witnesses and attorneys likely to interfere with the rights of the accused to a fair trial by an impartial jury.”
The order would apply only to “(a) statements regarding the identity, testimony, or credibility of prospective witnesses; and (b) statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.” In opposing the motion, Trump effectively claims the right to disparage, threaten and intimidate any party, witness, attorney, court personnel or potential jurors.
Trump subsequently proved the necessity of such an order. He suggested former chairman of the Joint Chiefs of Staff Gen. Mark A. Milley, a witness identified in the indictment, should be executed. He told his followers via social media that he had purchased a Glock, an assertion quickly walked back because it would have violated the terms of the order that allowed him to avoid pretrial detention. (Smith explained: “The defendant either purchased a gun in violation of the law and his conditions of release, or seeks to benefit from his supporters’ mistaken belief that he did so.”)
On Monday, in a civil proceeding in New York, Trump lashed out at New York Attorney General Letitia James, calling her a racist and telling the public, “You ought to go after this attorney general.”
After Trump raised a false rumor and insulted the court clerk on Tuesday, Judge Arthur Engoron decided he had had enough. “Personal attacks on members on my court staff are unacceptable, inappropriate, and I won’t tolerate it,” he said. He ordered both parties to avoid posting anything about his staff.
After the Milley threat but before the New York threats, Smith filed his reply brief. “Donald Trump is a criminal defendant like any other. And as this court has correctly stated, it has an obligation to protect the integrity of these proceedings from prejudicial interference,” Smith argued. “The defendant is publicly maligning witnesses and very intentionally commenting on the specific topics of their potential testimony at trial. In the context of a pending criminal case and trial, it is not the solution to the defendant’s improper and prejudicial statements to encourage a ‘hearty public debate’ in the media regarding witnesses and the merits of the case — it is the problem.”
Smith asserted that a gag order would limit only “the defendant’s use of his candidacy as a cover for making prejudicial public statements about this case — and there is no legitimate need for the defendant, in the course of his campaign, to attack known witnesses regarding the substance of their anticipated testimony or otherwise engage in materially prejudicial commentary in violation of the proposed order.”
If this were any other American, even another candidate for office, the court would be compelled to act. But we have heard the apologists for Trump: The Justice Department and courts are trampling on Trump’s First Amendment right and “interfering” with the 2024 election. A gag order would make matters worse.
Implicit is the recognition that Trump’s campaign is about maligning the judicial system, casting aspersions on the rule of law and threatening people. But, of course, a perverse campaign strategy cannot be deployed as an excuse for wreaking havoc on the judicial system.
The former president’s defenders appear to believe Trump should derive special treatment by virtue of his decision to run for office, a blatant attempt to cast any prosecution as political persecution. Their argument gives the back of the hand to the principle that there is one standard for all in our judicial system. Worse, these Trump enablers cavalierly ignore the very real danger he poses to judges, prosecutors, court personnel and witnesses. It amounts to legal nihilism that places Trump’s desire to return to office above the interests of the rule of law and the safety of others.
Judge Chutkan probably will bend over backward to avoid even the appearance of unfairness. She might, for example, require lawyers to review his Truth Social posts mentioning her, prosecutors, witnesses or the jury. But allowing Trump to continue unimpeded would be reckless, as Judge Engoron recognized.
Unless Chutkan wants to adopt Trump’s notion that he can intimidate whomever he pleases and attack at will the fabric of the judicial system, Chutkan must do something akin to Engoron’s gag order. We either have a system in which the rule of law applies to all, or we don’t.
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