Trump Barred From Comments on Election Case Attorneys, Witnesses

Zoe Tillman
·5-min read

(Bloomberg) -- A federal judge on Monday barred Donald Trump from making public statements “targeting” prosecutors, court staff and potential witnesses and their testimony in the federal election obstruction case against him in Washington.

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In announcing the partial gag order, US District Judge Tanya Chutkan said his statements could “implicitly encourage violence against public servants” and posed a “real risk” of intimidating or influencing witnesses.

“Mr. Trump may still vigorously seek public support as a presidential candidate, debate policies and people related to that candidacy, criticize the current administration, and assert his belief that this prosecution is politically motivated,” the judge said. “But those critical First Amendment freedoms do not allow him to launch a pretrial smear campaign.”

Chutkan didn’t enter as sweeping an order as Special Counsel John “Jack” Smith’s office had wanted. She said that she wouldn’t add restrictions on what he could say about Washington, DC, and the potential jury pool, broader criticisms of the Biden administration and the Justice Department or on his ability to claim the prosecution was politically motivated.

But the ruling is the most significant exercise of judicial power over Trump’s speech and conduct outside the courtroom that he has faced so far as he mounts his 2024 presidential run while facing four criminal indictments in state and federal courts. Chutkan said that if the government believed Trump had violated her order, she would consider sanctions as needed. She didn’t specify what those would include.

Trump said in a social media post he intends to immediately appeal Chutkan’s ruling, escalating an unprecedented First Amendment fight between the Justice Department and the frontrunner for the 2024 Republican presidential nomination.

The judge rejected Trump attorney John Lauro’s suggestion to delay the trial from the March 4 date she’d set until after the 2024 election. Lauro argued that Trump’s free speech rights as a political candidate deserved the highest level of protection.

“This trial will not yield to the election cycle,” said Chutkan, who was nominated to the Washington court by former President Barack Obama.

Read More: Judge Seeks to Do the Seemingly Impossible: Keep Trump Quiet

It’s the second gag order issued to Trump in recent weeks. A state judge in New York barred parties in the civil fraud case against the former president from posting online about court staff after Trump shared a since-deleted post disparaging a law clerk along with her photo.

Over two hours of arguments, Chutkan indicated she was troubled by Trump’s online posts since his indictment this summer and even after the government raised concerns about his speech and asked for restrictions. At one point she laughed out loud when Lauro said he believed the existing rules were working.

“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 comply with the conditions of release,” Chutkan said. “He does not have the right to say and do exactly what he pleases.”

‘Deeply Disturbed’

Chutkan said she was “deeply disturbed” by Trump’s post about the New York law clerk and asked Lauro if he believed that was acceptable. Lauro hedged, saying he wouldn’t advise clients to do that but stopped short of denouncing Trump’s conduct. The judge posed various hypothetical scenarios to Lauro, such as if Trump said that former Attorney General Bill Barr should be executed for treason or that Barr was “slimy” or should “shut his mouth.”

Lauro said such comments would be protected by the First Amendment and denied they would be a threat. He said the context mattered and that Trump had a right to speak to issues that came up on the campaign trail.

Trump’s campaign said in a statement that Chutkan’s decision “is an absolute abomination and another partisan knife stuck in the heart of our Democracy,” blaming the court’s ruling on his political rival, President Joe Biden.

Trump has posted online attacks against Smith — calling him a “thug.” In addition, he’s targeted potential witnesses, such as Mark Milley, the former chair of the Joint Chiefs of Staff, who Trump said could have faced “death” in the past for his conduct in office.

Chutkan said those comments seemed to be inviting harm. Lauro disputed there was proof of an imminent threat or that witnesses had been intimidated. Her order also prohibits Trump from making comments about the family members of prosecutors and court personnel. She’d expressed dismay that Trump in the past had posted messages about Smith’s spouse.

Chutkan admonished Lauro to keep “campaign rhetoric” out of the courtroom as he argued that every aspect of the case had political implications — from questions about Trump’s competence to serve as president again and the conduct of the Justice Department to the subject of judicial appointments. She said Trump could still campaign and respond to criticism but there was no question the court had power to restrict a defendant’s speech to ensure the “fair administration of justice.”

“You keep talking about censorship like the defendant has unfettered First Amendment rights. He doesn’t,” she said.

The judge signaled during the hearing that she wasn’t persuaded to adopt the full scope of what the government wanted, though, questioning how exactly to define “disparaging” speech and what to do about Trump’s general attacks on Biden. Pressed by the judge, prosecutor Molly Gaston said, for instance, that calling Biden “crooked” would be allowed but perhaps not use of the term “department of injustice.”

Chutkan also questioned how to handle Trump’s comments about former Vice President Mike Pence, since Pence is also running for the Republican nomination. When she announced her decision, she said that Trump could still generally criticize Pence, but couldn’t make statements about his role in the post-election period at issue in the criminal case.

The judge said she would release a more detailed written order later.

(Updates with details from hearing and scope of the order.)

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