I think the election interference case against Trump is legally flawed and — to the extent that it is valid — unwise to prosecute in the middle of an election season. The criminal-legal system, with all its punitive strictures, wasn’t designed to function with leading presidential candidates as defendants. And the presidential election system, with all its fierce competition and vituperative debate, wasn’t designed to function with defendants as candidates.
But there’s no going back. Smith’s insistence on indicting Trump over the 2020 election and trying him in the 2024 election year, combined with Republican voters’ insistence on making Trump their party’s presidential front-runner, has set up an inexorable clash between democratic politics and the law. There’s no fine-tuning it, no gentling of the legal and political processes to satisfy both. This is a head-on collision, and one or the other must yield.
I’m tempted to condemn Smith’s request for a gag order as an intrusion on the 2024 election, but that would miss the point. The Justice Department has already decided to thrust itself into the middle of the election. It might as well follow through: Prohibit Trump from attacking the proceedings, and when he doesn’t comply, jail him for contempt mid-campaign. Isn’t that what Attorney General Merrick Garland means when he says “no person is above the law”? Prosecutors have made their bed; they should lie in it.
Smith’s motion, which District Judge Tanya S. Chutkan has to rule on, claims to seek only a “modest” gag order. That’s not true. The prosecutor wants to bar Trump from “disparaging and inflammatory” statements not just about potential witnesses but also about “any party” to the case in United States v. Trump. That seems to include the prosecutors and Biden’s Justice Department in general.
In one passage, Smith complains that “the defendant posted a quote alleging, without any basis, that the indictment that a federal grand jury in this case returned had been directed by the sitting president: ‘Joe Biden directed his Attorney General to prosecute his rival. This is not an independent Justice Department, this is not an independent special counsel. This is being directed by the Commander-in-Chief.’ ”
“Through such posts,” the motion continues, “the defendant is attempting to submit his false and inflammatory claims to the public and jury pool outside of court.”
This passage is revealing. It shows the breadth of the gag order Smith seeks: He wants to prevent Trump from tying Biden to this prosecution during an election in which the two might face each other. And there is some basis for Trump’s assertion. The New York Times reported in April 2022 that Biden had “confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted, according to two people familiar with his comments.” The White House has ways of influencing an attorney general short of giving him explicit directives — such as through media leaks.
Criminal defendants can be subject to gag orders and other restrictions before trial. But asking whether Smith’s proposed order conforms with precedent is pointless because there is no comparable case. As former Obama White House counsel Greg Craig wrote, a gag order against Trump would represent “the first time that a federal judge imposed meaningful limits on the statements and freedom of a major presidential candidate.” Not only that, it also would represent the first time an incumbent administration has imposed a limit on the freedom of an opposing candidate to criticize the administration he is trying to replace.
Smith adds something halfheartedly at the end of his motion about “respecting the defendant’s First Amendment rights.” That’s laughable. He wants the defendant’s First Amendment right to speak — and the public’s opportunity to hear an open election debate — to bow to the criminal-legal process.
It would be far better for the country if Trump supporters finally broke with the former president, and it would be better if this indictment hadn’t been brought. But we are where we are: The Biden Justice Department and the GOP are forcing a stark choice between the sanctity of a criminal trial and the openness of a democratic election. Which takes precedence? The answer belongs to voters, and Smith might not like what they decide.
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