After indictment on felony charges, a criminal defendant can lose certain rights, such as the right to possess a gun. When that person is allowed out on bail, further rights can be curtailed. Passports (hence the right to travel) can be taken away. And defendants can lose the right to engage in behavior that threatens the fair administration of justice — including intimidation of witnesses and contamination of the jury pool. This basic framework applies to Trump just as it does to every criminal defendant, the D.C. Circuit held.
The D.C. Circuit’s opinion upheld Chutkan’s order prohibiting Trump from making statements about “(1) counsel in the case other than the Special Counsel, (2) members of the court’s staff and counsel’s staffs, or (3) the family members of any counsel or staff member — if those statements are made with the intent to materially interfere with, or to cause others to materially interfere with, counsel’s or staff’s work in this criminal case, or with the knowledge that such interference is highly likely to result.” There is nothing remotely violative of Trump’s First Amendment rights in barring this type of speech for a person indicted on felony charges out on bail.
Though Trump has a right to a fair trial, he has no right to insist, the panel held, upon “a trial prejudiced in his favor.” Put differently, the people also have a right to a fair trial, not one caught up in a “carnival atmosphere.” As the panel underscored, the Supreme Court has long held that a trial participant’s speech can be restricted to avoid material prejudice. (“In particular, the public has a compelling interest in ensuring that the criminal proceeding against Mr. Trump is not obstructed, hindered, or tainted, but is fairly conducted and resolved according to the judgment of an impartial jury based on only the evidence introduced in the courtroom.”)
In Trump’s case, the D.C. Circuit held that the district court “had the authority to restrain those aspects of Mr. Trump’s speech that present a significant and imminent risk to the fair and orderly administration of justice, and that no less restrictive alternatives would adequately address that risk.” Given that Trump has “repeatedly attacked those involved in this case through threatening public statements, as well as messaging daggered at likely witnesses and their testimony,” the appellate judges affirmed Chutkan’s ruling to the extent that it prohibits him from attacking reasonably foreseeable witnesses’ participation in trial.
Likewise, threats about counsel and staff “designed to generate alarm and dread, and to trigger extraordinary safety precautions, will necessarily hinder the trial process and slow the administration of justice.” Those, too, are banned (except with regard to special counsel Jack Smith personally). Regarding counsel and court personnel, remarks made “with either the intent to materially interfere with their work or the knowledge that such interference is highly likely to result” can be properly barred. (Requiring a finding of intent might give Trump an opening to drive his rhetorical bus through, but the court’s ruling demonstrates extreme care in protecting First Amendment rights, an effective way of fending off Supreme Court review.)
Perhaps most important, the panel noted that Trump’s suggestion to postpone the trial until after the election would create a perverse incentive, allowing his threats, attacks and incitement to accumulate. Moreover, the court made clear he will be free to talk up a storm for many months before the election because “the general election is almost a year away, and will long postdate the trial in this case.”
Leave no doubt: The D.C. Circuit is not going to allow him to escape trial before the election. As former federal prosecutor Andrew Weissmann put it, “The Trump criminal cases are existential examples of the legal aphorism that ‘justice delayed is justice denied.’ Judicial speed is not a nicety; it is a necessity to have legal accountability.”
This decision goes a long way toward preventing Trump from sabotaging the trial — and it bolsters equal justice under the law. In restoring restrictions on Trump, the court had Chutkan’s back “in every important way,” former federal prosecutor and legal commentator Harry Litman said on MSNBC. With a scalpel, not an ax, the D.C. Circuit protected the trial system without making Trump a First Amendment martyr.
Though Trump is a presidential candidate, he is “also an indicted criminal defendant, and he must stand trial in a courtroom under the same procedures that govern all other criminal defendants,” the court held. “That is what the rule of law means.” And it’s that principle that stands between us and the authoritarian nightmare a second Trump term would bring.
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