Election case judge imposes narrow gag order on Donald Trump

By Michael Kunzelman, Lindsay Whitehurst Alanna Durkin Richer | Associated Press

WASHINGTON — The federal judge overseeing the 2020 election subversion case against Donald Trump in Washington imposed a narrow gag order on him on Monday, barring the Republican former president from making statements targeting prosecutors, possible witnesses and the judge’s staff.

The order from U.S. District Judge Tanya Chutkan is a milestone moment in the federal case that accuses Trump of illegally conspiring to overturn his 2020 election loss to Democrat Joe Biden.

Special counsel Jack Smith’s team had raised alarm about a barrage of statements disparaging prosecutors, the judge and prospective witnesses. Those comments, prosecutors said, risked undermining public confidence in the court system and causing witnesses or people who might be picked as jurors for trial to feel harassed and intimidated.

Chukan said there would be no restrictions on statements criticizing the Justice Department generally or statements about Trump’s belief that the case is politically motivated.

But the judge said Trump can’t mount a “smear campaign” against prosecutors and court personnel. “No other criminal defendant would be allowed to do so, and I’m not going to allow it in this case,” she said.

Trump’s lawyers fiercely opposed any gag order, saying it unconstitutionally hinders his political speech. A Trump spokesman did not immediately respond to a request for comment on the judge’s ruling.

In seeking a gag order, Smith’s team accused the 2024 GOP presidential front-runner of using online attacks to try to taint the jury pool.

Trump’s lawyer John Lauro accused prosecutors of “seeking to censor a political candidate in the middle of a campaign.” But the judge shot back that Trump “does not have a right to say and do exactly as he pleases.”

“You keep talking about censorship like the defendant has unfettered First Amendment rights. He doesn’t,” Chutkan said. “We’re not talking about censorship here. We’re talking restrictions to ensure there is a fair administration of justice on this case.”

Chutkan, who was appointed by President Barack Obama, repeatedly warned Trump’s lawyer to keep politics out of the courtroom, and she cut him off when he suggested the case was politically motivated.

Prosecutor Molly Gaston on Monday had told the judge Trump’s lawyers were arguing their client is “above the law” and not subject to the same rules as other defendants. Gaston said Trump knows that his posts “motivate people to threaten others,” and she argued those can not only pollute the jury pool but also can chill witnesses.

“We have no interest in stopping the defendant from running for office or defending his reputation,” she said.

Chutkan also read aloud statements Trump has made about her, deriding her as a “radical Obama hack.” Although she said she was “less concerned” about statements that Trump has made about her, she said his free speech doesn’t extend to language that knowingly invites threats and harassment of “people who are simply doing their jobs.”

The gag order underscores the unprecedented complexities of prosecuting the GOP presidential primary front-runner, who has made the line of attack central to his campaign. And it presents a big test for Chutkan, who must balance Trump’s First Amendment right to defend himself publicly with the need to protect the integrity of the case.

It marks the beginning of what could be an extraordinary fight over what limits can be placed on the speech of a defendant who is also running for America’s highest public office. The gag order from Chutkan is likely be challenged on appeal and could ultimately end up before the U.S. Supreme Court, legal experts have said.

Trump’s campaign had seized on the proposal of a gag order in fundraising appeals, and Trump falsely characterized it as an attempt to prevent him from criticizing Biden, who became president in January 2021. Trump’s defense said any gag order would be unconstitutional and a “desperate effort at censorship.”

The Chutkan hearing on Monday came on the heels of a judge overseeing Trump’s civil fraud trial in New York imposing a more limited gag order prohibiting personal attacks against court personnel following a social media post from Trump that maligned the judge’s principal clerk.

Monday was the first time Trump’s lawyers had appeared before Chutkan since she denied Trump’s request to recuse herself from the case, which alleges Trump illegally schemed to overturn his 2020 election loss to Biden. Trump has denied any wrongdoing.

The defense had claimed Chutkan’s comments about Trump in other cases raised questions about whether she had prejudged his guilt. But Chutkan said her comments were mischaracterized and there was no need for her to step aside.

Trump has frequently used social media to attack Chutkan, prosecutors, likely witnesses and others despite warnings from the judge that inflammatory comments could force her to move up the trial currently scheduled to begin in March.

Prosecutors noted in a recent motion that Trump’s incendiary rhetoric continued even after their initial gag order request. They cited critical comments about witnesses referenced in the indictment — such as former Attorney General William Barr — and a social media post suggesting that Mark Milley, the retired chairman of the Joint Chiefs of Staff, had committed treason and should be executed.

Prosecutors said their proposal would not have prevented Trump from publicly declaring his innocence. In court papers, they wrote that Trump was demanding “special treatment” by claiming “he should have free rein to publicly intimidate witnesses” and disparage others involved in the case.

“In this case, Donald J. Trump is a criminal defendant like any other,” Smith’s team wrote.

Richer reported from Boston.