Judge Chutkan: Trump’s right to free speech ‘not absolute’

To make their point, prosecutors pointed to Trump’s social media posts since he was indicted last week, including a vague and ominous Truth Social post reading “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Trump also slammed Chutkan, writing in an all-caps post, “There is no way I can get a fair trial with the judge ‘assigned’ to the ridiculous freedom of speech/fair elections case. Everybody knows this and so does she!”

By Hanna Rabinowitz and Tierney Sneed | CNN

US District Judge Tanya Chutkan said that she plans to put serious limits over how sensitive evidence is handled in the Donald Trump 2020 election interference case, in a dramatic hearing Friday in Washington, DC, that could set the tone for the upcoming trial.

The former president has a right to free speech, but that right is “not absolute,” Chutkan said. “Mr. Trump, like every American, has a First Amendment right to free speech, but that right is not absolute. In a criminal case such as this one, the defendant’s free speech is subject to the rules.”

She also said that the more that a party makes “inflammatory” statements that could taint a jury pool, “the greater the urgency will be that we proceed to trial quickly” to ensure a fair trial.

This is the first hearing before Chutkan. She has already shown a habit of responding quickly and tersely on the docket to debates between the parties over scheduling. An Obama appointee and former public defender who has overseen several cases regarding the events of January 6, 2021, Chutkan has been outspoken about the harm the US Capitol attack caused to American democracy.

Trump pleaded not guilty to four criminal charges related to his efforts to overturn the 2020 presidential election last week, and the judge warned Trump about any possible intimidation of witnesses.

Whether or not Trump’s public statements are covered by the protective order that’s issued, she said, if they result in the intimidation of a witness or the obstruction of justice, “I will be scrutinizing them very carefully.”

Trump’s lawyer John Lauro said: “President Trump will scrupulously abide by his conditions of release.”

Chutkan adopted restrictions proposed by prosecutors that would bar Trump from publicly disclosing information from interview transcripts and recordings from the investigation, including from witness interviews with investigators that took place outside of the grand jury.

How Chutkan handles the case is likely to serve as a contrast to US District Judge Aileen Cannon, a Trump appointee in Florida who has been in less of a rush to move proceedings along in the classified documents case against the former president. Cannon has already been heavily scrutinized for what critics say is a favorable treatment of the former president in a previous lawsuit Trump brought last year challenging aspects of the Justice Department’s investigation.

Politics and criminal defense

Chutkan and Lauro had several pointed exchanges about what the 2024 presidential contender should be allowed to say about the evidence that is turned over to him in the case.

“No one disagrees that any speech that intimidates a witness would be prohibited, what we are talking about is fair use of information,” Lauro said at one point, putting forward a hypothetical that Trump is publicly remarking on something from his personal memory that is also evidence in the case.

“The fact that he is running a political campaign currently has to yield to the administration of justice,” the judge said. “And if that means he can’t say exactly what he wants to say in a political speech, that is just how it’s going to have to be.”

Lauro put forward a hypothetical of Trump making a statement while debating his former Vice President Mike Pence – who is also running for the White House now and is a key witness in the criminal case – that overlapped with what’s in discovery.

The judge wasn’t sold.

“He is a criminal defendant. He is going to have constraints the same as any defendant. This case is going to proceed in a normal order,” Chutkan said.

“You are conflating what your client needs to do to defend himself and what he wants to do politically,” she told him. “And what your client does to defend himself has to happen in this courtroom, not on the internet.”

The special counsel said Thursday it wants the trial to begin on January 2, 2024, a date that Trump rejected in a social media post.

Scope of protective order over evidence

Protective orders are a normal part of any criminal case and are typically approved without much drama. In this case, however, the special counsel’s office and Trump’s defense lawyers have battled in court filings over what Trump will be able to discuss publicly.

Among the restrictions the prosecutors are requesting in this case is a rule barring Trump’s lawyers from providing copies of “sensitive” evidence to the former president, including witness interviews and grand jury transcripts from the dozens of witnesses in Trump’s circle who have spoken to prosecutors.

To make their point, prosecutors pointed to Trump’s social media posts since he was indicted last week, including a vague and ominous Truth Social post reading “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” Trump also slammed Chutkan, writing in an all-caps post, “There is no way I can get a fair trial with the judge ‘assigned’ to the ridiculous freedom of speech/fair elections case. Everybody knows this and so does she!”

The posts, prosecutors said, emphasized the need for a protective order that would limit whether Trump can discuss or share evidence on his social media accounts during the course of the legal case.

“If the defendant were to begin issuing public posts using details – or, for example, grand jury transcripts – obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case,” prosecutors wrote.

For their part, Trump’s legal team proposed less restrictive rules, alleging that prosecutors are on a politically motivated campaign to restrict his First Amendment rights. His defense lawyers pushed back on prosecutors’ definition of “sensitive” material that should be subject to additional rules, and asked to expand who can access certain evidentiary materials.

This story has been updated with additional developments.