A federal judge is considering whether to issue a gag order against former President Donald Trump in a hearing in Washington, DC, Monday.
Following the two federal indictments against the former president, Trump has lashed out against prosecutors, potential witnesses and the judge overseeing the election subversion case in Washington. Prosecutors with special counsel Jack Smith’s office say these comments are enough to warrant a narrow restriction on Trump’s speech around the case.
District Judge Tanya Chutkan, often the target of Trump’s attacks, has previously warned the former president that comments he or his attorneys make could threaten the case.
“Mr. Trump is a criminal defendant. He is facing four felony charges. He is under the supervision of the criminal justice system and he must follow his conditions of release,” Chutkan said Monday.
“He does not have the right to say and do exactly what he pleases. Do you agree with that?” she asked Trump attorney John Lauro, who responded: “100%.”
Trump’s attorneys have attacked the proposed order as fundamentally antithetical to his First Amendment rights and suggested the order is simply a way for President Joe Biden and the Justice Department to hurt Trump’s ability to campaign.
Lauro accused the special counsel’s office of trying to “to prevent President Trump from speaking out about the issues of the day,” adding, “Every single issue that relates to this case also has political issues.”
In social media posts, Trump has attacked Chutkan as a “biased, Trump Hating Judge” and called Smith “deranged” and a “thug” as well as attacked individual members of his team.
Chutkan responded to Lauro: “I understand that you have a message you want to get out. I do not need to hear any campaign rhetoric in my court.”
She added that the trial date set for early March won’t change: “This trial will not yield to the election cycle, and we will not revisit the trial date.”
Prosecutors say Trump’s attacks against potential witnesses – including former Vice President Mike Pence and former Attorney General Bill Barr – could result in witness intimidation by his followers.
“The defendant’s relentless public posts marshaling anger and mistrust in the justice system, the Court, and prosecutors have already influenced the public,” prosecutors wrote in a filing last month. “For instance, on August 5, 2023, an individual was arrested because she called the Court’s chambers and made racist death threats to the Court that were tied to the Court’s role in presiding over the defendant’s case.”
They told the judge Monday their goal is not to stop Trump from campaigning.
“We have no interest in stopping the defendant from running for office or defending his reputation, nor does our proposed order do that,” said prosecutor Molly Gaston.
“This is about the participants, the witnesses, in this trial,” Gaston added. “It is limited to those individuals and it is limited to statements that are intended to influence the venue or potential jurors.”
When he first appeared in Chutkan’s courtroom in late August on charges that he unlawfully worked to overthrow the 2020 election results, the judge warned Trump against making “inflammatory” comments in the case.
“Legal trials are not like elections, to be won through the use of meeting halls, the radio and newspaper,” Chutkan said at the time, later adding: “I will take whatever measures are necessary to safeguard the integrity of these proceedings.”
Any restrictions on Trump’s speech, regardless of how narrow, would likely be brought up in appeals in the case along with defense attorney’s claims that the federal cases against Trump are being rushed in order to secure a conviction against him before the election.
If Chutkan does decide to place restrictions on what the former president can say, she won’t be the first judge to do so.
In early October, the judge overseeing the ongoing New York civil fraud trial against Trump issued a gag order against the former president after he attacked a member of the court’s staff.
“Consider this statement an order forbidding all parties from posting, emailing or speaking publicly about any members of my staff,” Judge Arthur Engoron said after Trump accused his clerk of being Senate Majority Leader Chuck Schumer’s girlfriend and calling for her to be dismissed on a social media post.
“Failure to abide by this … will result in serious sanctions,” Engoron said.
This story has been updated with additional developments.