Courts & Litigation Criminal Justice & the Rule of Law

To Gag or Not to Gag: A First Amendment Showdown in the Jan. 6 Case

Hyemin Han
Tuesday, October 17, 2023, 1:11 PM

A dispatch from Judge Tanya Chutkan’s gag order hearing

E. Barrett Prettyman Courthouse, Washington, D.C. (Photo by Hyemin Han for Lawfare Media. All rights reserved.)

Published by The Lawfare Institute
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Editor’s note: The following is a dispatch from a hearing held on Oct. 16, the latest episode in Lawfare’s series of dispatches on the ongoing Jan. 6 case against former President Donald Trump. 

It’s a bit past 7 a.m., and a total of seven reporters and seven members of the public are in the halls of E. Barrett Prettyman Courthouse. It’s much emptier than it was at this same time for the trial date-setting hearing back in August, when Judge Tanya Chutkan last presided.

The low turnout is surprising because the issues on today’s docket are classic Trump trials kind of stuff. His lawyers are essentially in court to fight for his right to post on Truth Social: to convince Judge Chutkan that Trump has the right to talk about the circumstances of his ongoing prosecution over his role in Jan. 6, whether about the D.C. jury pool, the integrity of potential witnesses, or whether the case is politically motivated overall. His lawyers say these statements are all First Amendment-protected speech. The government’s position is that such statements will prejudice the jury pool and prevent witnesses from testifying.

What the crowd lacks in size, though, it makes up for in star power: Rep. Marjorie Taylor Greene (R-Ga.) is here, standing in the public line. She’s telling reporters the same thing she wrote earlier this morning on Truth Social: that she’s here as a part of the Oversight Committee, to watch what Judge Chutkan does. She tells me that she’s most concerned about “the freedom of speech being destroyed” today.

It’s now 10:02 a.m.: Judge Chutkan enters the room, and the court is called into session. Back again for the government are Molly Gaston and Thomas Windom, and at the table with them is FBI Special Agent Jamie Garman. Trump’s usual group of John Lauro, Todd Blanche, and Greg Singer has been supplemented with Emil Bove, added to the defense team just a few weeks ago.

Chutkan begins by reviewing the government’s Sept. 5 motion, originally filed under seal. It asks first for a restriction of out-of-court statements pursuant to Criminal Rule 57.7 of the local rules for the U.S. District Court for the District of Columbia, which states that a court in a “widely publicized case” may issue a “special order governing such matters as extrajudicial statements by parties, witnesses and attorneys likely to interfere with the rights of the accused to a fair trial by an impartial jury.” Specifically, the government’s motion seeks restrictions on Trump as they pertain to statements about witnesses (their identities, testimony, or credibility) and statements that may be disparaging and inflammatory about any parties involved in the case. Second, it asks that the court put restrictions on the manner and means of any poll of the citizens of Washington, D.C., that Trump’s team may want to pursue.

Chutkan wants to begin with the latter issue. It’s “simpler” to resolve, she declares.

Right off the bat, she indicates that she’s pretty satisfied with the status quo. The defense, she explains, already agreed at an earlier hearing that it would notify the court if it intends to conduct a jury survey. The defense also does not object to notifying the court about the dates of any survey and the expected sample size. She says she doesn’t want to preemptively prevent or micromanage the polling process, but she may want to look at the polling methodology if Trump tries to use the polls to move for a change in venue.

The issue is wrapped in the first five minutes of the hearing.

Chutkan swiftly moves on to the gag order—the main event of the day. Of course this case is widely publicized—there’s no question about it, she says. So the question is whether she should issue an order, and what the contours of any such order should be. She notes that gag orders are in general considered in order to preserve the integrity and fairness of the trial and to prevent prejudicing the jury, and that it doesn’t violate the First Amendment if speech in a case has a likelihood of tainting the jury pool or undermining the proceeding. 

Turning to the case law, Chutkan reviews that the government wants her to rely on standards set in Gentile v. Nevada (1991), in which the Supreme Court held that it’s not a violation of First Amendment rights for a defense attorney’s speech to be limited if the lawyer knows or should reasonably know that such statements could materially prejudice a proceeding. She notes that the limits would be aimed at speech that could influence the outcome of the trial or are likely to prejudice the jury venire. The defense, on the other hand, thinks that the standard in Gentile applies only to defense attorneys—so, instead, the order has to survive strict scrutiny, and the government has to show that any potential prohibited speech would actually present a clear and present danger to the administration of justice. Chutkan observes that neither the Supreme Court nor the D.C. Circuit has addressed which legal standard applies to a defendant in a case like this, but that the Fifth Circuit applied the standards in Gentile to both the defense counsel and the defendant in U.S. v. Brown (2000). In any case, she says she doesn’t think she needs to rule on which standard applies, because she intends to create an order that will satisfy both. 

She turns now to Trump’s situation. In particular, Chutkan wants to know why the government wants a gag order on top of what Trump is already bound by: the conditions of his release and Local Criminal Rule 57.7. She points out that as a part of the former, Trump has to abide by federal, state, and local laws, including 18 U.S.C. §1512, the witness tampering statute. She also notes that in U.S. v. Morrison, the D.C. Circuit held that these protections apply to both identified witnesses and prospective witnesses not yet specified. 

“I’m just trying to nail down what the marginal change would be,” she says to Gaston.

Gaston makes her way to the front. She makes clear that the government isn’t trying to infringe on Trump’s ability to run his campaign. Instead, she insists, the government’s request focuses on two specific sorts of prejudice that may taint the jury pool and impact the trial. The first has to do with derogatory, inflammatory, or intimidating statements against witnesses, statements that may chill them from potentially being able to play their role in trying the case. The second is the government’s concern that Trump will attempt to try the case in public rather than in the courtroom. Attacks on the motives of court personnel and statements disparaging them, Gaston argues, risk biasing the jury.

Chutkan here asks Gaston to define what “disparaging” means and what fairness of a trial means to the government.

From the government’s perspective, the concern is a combination of inflammatory statements, statements that would anger people, express animus, disparage court personnel or witnesses, and statements that might prejudice the jury pool, Gaston explains. It’s not one of those things in isolation, but rather all of them all together, that will create the conditions for an unfair trial. She points to Sheppard v. Maxwell (1966) as precedent for the fact that a judge has the power to issue orders, and should issue orders, that prevent such taint from happening. She tells Chutkan that the government is not married to the exact wording of its proposed order, and that it’s a difficult order to craft, but that the answer cannot be that Trump is allowed to “intentionally try this case in the court of public opinion and intentionally prejudice the venire,” whether it be through derogatory or even praising statements of potential witnesses. 

After Gaston returns to her seat, Lauro is up at the lectern on behalf of Trump. “We’re in the middle of a campaign,” he says. “The prosecutor couldn’t answer your questions,” he continues, “because she ignores the fact that the Biden administration is seeking to censor a political candidate in the middle of a campaign.”

“Mr. Lauro, let me stop you,” interjects Judge Chutkan. She states that Trump is a criminal defendant facing four felony charges. She says he doesn’t have the right to say and do exactly as he pleases. “Do you agree with that?” she demands. 

“One hundred percent,” replies Lauro emphatically, saying that everyone is abiding by the rules—a statement about which Chutkan seems incredulous. Lauro brings up U.S. v. Ford (1987), a case in which a congressman, Harold Ford, “accused his prosecutors of being racist.” According to Lauro, the U.S. Court of Appeals for the Sixth Circuit held that Ford was “entitled to do that in connection with his political activities.” And he raises U.S. v. Brown (2000), in which, Lauro says, “the judge specifically said that there would be no order of censorship during the political campaign.”

Here, Lauro says, “these prosecutors want to prevent Trump from speaking out on the issues of the day.” He contends that every single issue in the ongoing Jan. 6 case,  is “inextricably intertwined” with the 2024 race: presidential competency, the appointment of judges, the independence of the Justice Department. And Trump should be able to talk about all of them freely, Lauro asserts.

Chutkan interrupts. She says she wants to be clear if Lauro means to say that because Trump is running for president, he has a corresponding need and right to make threats. Lauro thinks not but says that the Brown case establishes a need for strict scrutiny on any censorship that might constrain campaign speech.

But Trump “has restraints on his speech,” interrupts Chutkan. Does Lauro disagree that Trump’s conditions of his release “override his First Amendment rights in his campaign?” she asks. For instance, she says, Trump is not allowed to talk about the subject matter of a witness’s testimony as a part of his campaign. 

Lauro says that Trump is bound by the conditions of his release but that Trump is entitled “to speak truth to oppression,” even if those things may seem insulting from the prosecution’s perspective, especially if Trump believes that the Justice Department is acting unlawfully. He contends that the United States operates by means of “a marketplace of free ideas” and free speech.

“The answer to oppression, the answer to tyranny, is for Americans to speak freely,” he contends. “And here we have a situation where the Biden administration, with all the powers ….” 

Chutkan does not seem amused.

“I understand that you have a message you want to get out,” she says. “I want to address the motion and the law. I do not need to hear campaign rhetoric in my court.”

Lauro turns back to Ford and Brown. He argues that if Chutkan issues this gag order, it would be the first time the court had limited the speech of an active political candidate. He suggests that the best way to deal with this problem is the “obvious one”: push back the trial until after the election, so that prosecutors don’t need to rush to a judgment. But Chutkan says this is not an option. 

“This trial will not yield to the election cycle,” she says firmly.

Having heard the initial positions of each side, Chutkan now wants to know how exactly a gag order might work. Specifically, she asks Gaston, what are the kinds of remedies the government would seek? A modification of the conditions of release? Financial penalty? Home imprisonment? An earlier trial? And would the government have to file a motion in response to a violation of the gag order, or would the government expect Chutkan to oversee the gag order contours sua sponte

Gaston thinks all of the options are available to the court. She essentially defers to the court about how to enforce the gag order.

But Chutkan turns now to Lauro to ask him his opinion: Assuming that she issues an order, what would the proper enforcement procedure be, from his perspective?

Lauro says it’s impossible for him to answer a question about theoretical enforcement because he “can’t conceive of an order” that would make sense in this circumstance. He says that the government’s proposal is not narrowly tailored, is overbroad, and that, overall, it’s “absolutely ridiculous to think of an order.” In the end, Lauro says that there’s no gag order needed because what’s currently in place is already working. 

A hearty laugh from Chutkan. “I take issue with that,” she says.

Lauro ends his turn by saying that the harm that the government contends may come from Trump’s speech is not something that can be prohibited, since third-party actions cannot be blamed on an individual’s speech. “That would be the end of the First Amendment as we know it,” declares Lauro.

Chutkan is now ready to review the specifics of what Trump has said so far. The judge reminds the parties that Trump has spoken out about the trial before and even right after the government filed its motion for limiting extrajudicial statements. She says she’s organized his statements into five categories: statements he’s made (1) about Washington, D.C., and the jury pool, (2) about the Biden administration, (3) about Special Counsel Jack Smith and his staff, (4) about judges and court staff, and (5) about witnesses.

Concerning the first category, she points to an Aug. 6 post from Trump, in which he states that Washington, D.C., is a “filthy and crime ridden embarrassment to our nation” and that he won’t be able to get a fair trial there. The government said in its motion that the court needs to prevent bias against Trump. Why, she asks the government, can’t this be addressed through careful voir dire or jury instructions? 

Gaston replies that the court has a responsibility to prevent a prejudice of  the jury venire, not just correct it during jury selection. She also says that Trump should not be allowed to issue public statements about the venire when he’s trying to change the venue for this case.

Chutkan turns to Lauro to ask whether he agrees that Trump’s statements could be understood as disparaging D.C. Lauro doesn’t. He says Trump is criticizing President Biden and Washington, D.C.’s leadership. He extols D.C. and all of its people, reminding Chutkan that he used to work here, too.

“Before it became a filthy and crime-ridden embarrassment?” Chutkan queries.

Lauro responds: “There’s some laughter in the courtroom, that’s fine.” But he goes on to say that Mr. Trump is allowed to draw attention to problems in Washington, D.C. In fact, says Lauro, Trump saying things like this about D.C. could also work against him. Chutkan says that those statements can be a double-edged sword in light of venue change questions. Lauro goes on to say that Trump can’t be “censored.” 

“There’s no question that a court is entitled to draw restrictions on a defendant’s behavior and speech pending trial,” she says. “You keep talking about censorship as if the defendant has unfettered First Amendment rights. He doesn’t.”

But Lauro thinks that, regardless of whether one calls it censorship or a gag order, it’s impossible to craft an order without infringing on Trump’s rights to talk about the issues. Chutkan thinks that Trump could modulate how he talks about D.C.: Saying “the Biden administration has neglected this city” is different from saying that it’s a “filthy” and “crime-ridden” city.

“So now we’re going to have a court directing how a presidential candidate should talk about issues relative to the campaign?” responds Lauro. He goes on to say that we all know that Washington, D.C., is crime ridden and infested with rats, for instance, and shouldn’t a candidate be able to say so? This is all going toward “squelching” political speech, he says.

Gaston, for her part, maintains that Trump’s statements weren’t a criticism of D.C. in general, but specifically attacking the jury pool. And she says that Trump can certainly continue to campaign: All the government wants is to prevent Trump “from using his campaign to broadcast prejudicial statements.”

Chutkan next turns to statements about the Biden administration. She wants to know if the special counsel wants to prohibit Trump from saying things like “crooked Joe Biden” or the “department of injustice.” How does name-calling affect the administration of justice in this case, she asks Gaston.

Gaston starts by saying that the order wouldn’t prohibit Trump from criticizing President Biden. She says that since Biden isn’t a part of the case, it’s fair for Trump to talk about him. However, she argues that the government has concerns about Trump’s statements about the nature of this prosecution and whether it’s been improperly brought by an apparently “crooked” Justice Department. She thinks it’s the court’s duty as decided in Sheppard to preemptively block these kinds of harm. But Chutkan says that Lauro has a point about the proposed order being too broad: Would calling Biden himself “crooked” not violate a potential gag order while calling the Justice Department “crooked” would? According to the Gentile standard, says Chutkan, statements that are critical of the state’s power are exactly the kinds of things that the First Amendment protects.

Lauro interjects: What if Trump said something about how Biden, who was “bribed by millions of dollars,”  approved his Justice Department’s bringing of a politically motivated case? Lauro and Gaston both hover at the podium—and Gaston indicates that this would be a problem for the government. But Chutkan says that Lauro’s hypothetical points out the truth that the Justice Department is a part of the executive branch, so it’s going to come up in the campaign. Would it be a violation of the gag order for Trump to say that Biden directed his Justice Department to silence a political rival?

Gaston hesitates. “By the plain language of the order it would not, because Joe Biden is not a party, witness, attorney, court personnel, or potential juror,” she states. Lauro chimes in from the side that the prosecutors had said that this kind of statement would not be allowed in their motion and suggests that the government isn’t aware of what it put in its own filing. He tries to get in a question about Hunter Biden, but Chutkan doesn’t let it get far.

“I’m sitting here thinking George Orwell would have a field day with what we’re hearing from these prosecutors,” says Lauro.

“George Orwell would definitely have a field day,” replies Chutkan. Laughs from the courtroom..

She then opens discussion on the third category: statements regarding Special Counsel Jack Smith and his staff. Trump has referred to Smith as “deranged” and his staff as “thugs,” most recently in a Truth Social post from last night, she notes.

“If you call certain people ‘thugs’ enough times, doesn’t that suggest, Mr. Lauro, that someone should get them off the streets? How is calling a civil servant, doing their job, a job which they’ve done through multiple administrations, a thug, necessary to advance a political debate or campaign?” she asks.

Lauro says he looked up the definitions of “deranged” and “bully” in Merriam-Webster, and he thinks both are accurate. He says that Special Counsel Smith made “outrageous” statements linking Trump to violence while apparently knowing they were false—and Trump is entitled to respond in kind.

Chutkan’s voice becomes stern. “You were a career prosecutor,” she says to Lauro. “In what kind of case would you think it would be appropriate for a criminal defendant to call a prosecutor a thug and stay on the streets?”

She leans back in her chair in exasperation. For the next few minutes, the two go back and forth in a kind of dance around the question as Lauro tells Chutkan that he himself, “as an officer of the court,” wouldn’t say such things and would advise his clients, including Trump, not to say such things. But what Chutkan wants to know is if Lauro thinks Trump has a right to say such things under the First Amendment. She’s trying to figure out what Lauro’s own beliefs about Trump’s boundaries are. 

The American electorate wants to know Trump’s candid views on such things, he says. What is happening in this courtroom will affect the country for years to come, he says. He talks about speech as a counter to “totalitarianism” and “tyranny.”

“Obviously, you have an audience other than me in mind,” she says about his statements. She tells him to tone it down a bit, reminding Lauro that Trump is currently out campaigning in Iowa while they are in court today to debate whether there should be restrictions on his speech.

Lauro says that while the court may not like Trump’s choice of words, he’s entitled under the First Amendment to make such statements. But Chutkan isn’t convinced: What about the family of Special Counsel Smith? What does his spouse have to do with this case, she demands. Lauro responds that that’s “part and parcel” of the First Amendment, repeating again his stance: While he himself wouldn’t do it, Trump is allowed to. 

Chutkan exhales. “Ms. Gaston?”

Gaston’s reply is brief: She thinks that Chutkan has identified why the government paired “disparaging” with “inflammatory” in the proposed order. What Trump’s doing is not just disparaging, but trying to elicit a response.

“He knows and understands the effect of these statements, and … it is that they motivate people to threaten others.” She also suggests that Trump is capable of not using inflammatory statements, pointing to a Sept. 17 “Meet the Press” interview in which he declined to answer questions when it suited him.

“He is able to not say these things,” contends Gaston, “but he is using his campaign as a platform to make these statements with the intention of trying the case in the court of public opinion rather than in this court.”

With that, we’re on to the fourth category: statements about judges and staff. Chutkan notes that she herself has been called a “fraud dressed up as a judge” and an “Obama hack” by Trump, but says she’s not that concerned about curbing attacks against herself. Rather, she says, she was deeply concerned that Trump just last week made attacks against court staff in the New York case. She thinks it’s pretty incredible that Trump would do this in another ongoing case while the government’s motion for a gag order was pending in this case. She asks Lauro whether he thinks Trump’s posting a picture of a law clerk is acceptable. 

Lauro takes a now familiar tack: He himself wouldn’t do what Trump is doing, and he’d advise Trump not to, but he’s ambivalent on whether or not it’s appropriate to do so and says that such a thing hasn’t happened in this case yet. He stresses that this case so far has been orderly.

“The court’s instruction and admonition is heard by all, and I will communicate it to my client,” he says. “Everything that’s happened in this court you’ve had control over,” he tells her.

Chutkan raises her eyebrows and chuckles to herself.

Gaston points out that the case hasn’t been without its own bumps so far, reminding Chutkan that this very court has been the target of a criminal threat already. 

We’re on to Chutkan’s last category: Trump’s statements about witnesses. These are people like Vice President Mike Pence, Attorney General William Barr, Chairman of the Joint Chiefs of Staff Gen. Mark Milley, and Georgia Gov. Brad Raffensperger. The judge says that the defense contends that people like these, who have entered into “hearty public debate” with Trump, are not likely to be intimidated. The defense has said that Trump hasn’t called for these people to be harmed, and that First Amendment rights can’t be limited on the basis of speculation of what third parties might do based on Trump’s posts.

Chutkan wants to take these points in turn, starting with the question about public figures like Mike Pence who are running for office. She says she understands that Trump will have to criticize Pence, since he’s opposing Trump in the Republican presidential primary. But why, she asks Lauro, should Trump have to talk about others who aren’t running for political office?

Lauro responds by saying that the government had a chance to get affidavits from all of the above and should’ve gotten affidavits if they felt they were being intimidated. He says that Trump’s accusation of Milley is warranted because it’s a national security issue that would matter for an administration of a government, and that Trump has a right to criticize Barr and Raffensperger, because they’re both public figures. But Chutkan interjects: What we’re talking about here seems to be about language and semantics, she says. No one has said that Trump can’t respond to criticism or campaign. The issue is the kind of language that Trump is using while he does so.

“He doesn’t get to use all the words,” she says. 

But Lauro contends that the “overwhelming amount of speech in this case” and in D.C. has been anti-Trump, and that Trump has a right to respond. He also says that if she puts this gag order into place, they will be “litigating these issues ad infinitum” instead of moving toward trial. He says they will be “angels on a pin” about what might violate a “censorship order” and suggests again that the way to deal with this would be to just move the trial to after the election. 

She doesn’t take the bait about the trial date. She wants to know, if Trump calling people out doesn’t incite violence, does it risk it? The government’s motion, says Chutkan, cites a number of people who have said under oath that threats have increased because of Trump’s statements. Lauro responds that these are public officials who signed up for this, and that if Trump had actually incited violence definitively, we wouldn’t be here today to talk about just a gag order. 

It’s Gaston’s turn. She says that it’s the court’s duty to prevent harm, and that the court doesn’t need to tolerate these statements. What Lauro is suggesting, contends Gaston, is that Trump is above the law and that he can say whatever he wants about this case—and the court should stop him because he’s using the campaign to try this case outside the courtroom.

It’s around 11:30 a.m. now, but Chutkan isn’t done. It’s time for some hypotheticals.

What if Trump said that “Bill Barr should be executed for his many treasonous acts. Is that appropriate?”

Lauro reverts to his familiar refrain: As an officer of the court, he he would advise clients not to make such statements. Chutkan asks why? Is it because he thinks it’s a threat? Lauro claims it’s not.

Next hypothetical Trump statement: “I hope Bill Barr stays loyal to me or he won’t have a place in my administration.”

Lauro responds that it’s a political statement about whether someone would have a future in an administration.

How about: “Bill Barr is a smart guy but he better learn to have his mouth shut”? Is this permissible or an attempt to obstruct justice or intimidate a witness?                                      

“Well, first of all, I’m grateful for these hypotheticals,” says Lauro.

“Takes you back to law school,” riffs the judge. 

“But as I would tell the professor, it depends on the context, your honor,” Lauro continues. The statement might be permissible if Trump said it in response to Barr’s claims that he is unfit for office, he says. But the situation would be different, he concedes, if Trump said it the day before Barr was called to testify at trial, for instance.

Chutkan has another hypothetical: “Bill Barr is a slimy liar and can’t be trusted.”

Lauro’s fast on this one. “Well, I’m not going to say truth is a defense, but ….”

This gets a big reaction in the media room. But the bottom line, Lauro continues, is that Trump is allowed to comment on Barr’s activity as attorney general. And Lauro declares that Barr is a “tough guy” who wouldn’t be intimidated by what Trump says—he wishes Barr were here right now. Lauro ends by saying that statements about these people are related to fundamental ideas of a presidential campaign. 

“These are all pressing public issues,” he says. “The public wants to know what kind of people President Trump will have in his cabinet in 2024.”

Chutkan turns to Gaston to wrap it up. Gaston runs through the hypotheticals one by one. The first, she thinks, would be considered an “intimidating” and “threatening” communication about an individual who appears in the indictment. It could not only chill the witness himself but, more importantly, threaten individuals who are not as powerful as Barr.

When it comes to the hypothetical about Barr needing “to keep his mouth shut,” Gaston thinks it both could be a violation of Trump’s conditions for release and could potentially represent an indirect attempt to influence Barr’s testimony or erode his credibility. There are similar issues with the “slimy” hypothetical, Gaston says.

There’s a functional asymmetry, she continues, in allowing Trump to speak about potential witnesses. If Trump calls out individuals, they will likely want to respond in kind—in which case, a part of their testimony is revealed in advance of the trial, in front of the public. But the government will never respond to these statements—meaning that Trump’s word is left to stand uncontested. She asks Chutkan to think, also, about the less high-profile witnesses whom the government may ask to testify, and what effect this may have on them.

Finally, we’re at the scope of the potential order. “The universe of prospective witnesses seems to be quite large,” Chutkan muses. With whom is Trump not allowed to disagree publicly?

Gaston replies that he shouldn’t be able to talk about people mentioned in the indictment or who, based on discovery materials, it’s clear may be called as witnesses. 

Lauro thinks that this would be asymmetrical, since Barr could attack Trump but Trump wouldn’t be able to respond. Chutkan suggests that there will have to be some asymmetry for Trump regardless, given that he is a criminal defendant. Lauro parries that “no court in history” has limited the speech of a political candidate. 

“So we’re back to square one, your honor, because all of this is protected speech,” he says. It’s impossible to structure a gag order without infringing on Trump’s First Amendment rights, he concludes. 

Gaston, too, returns to a point she made at the beginning of this hearing: What the government wants is not to prevent Trump from campaigning, but to prevent him from using the campaign to try this case in the court of public opinion. The government’s gag order request will impact “only a fraction” of Trump’s speech, according to Gaston. “All the government wants is for him to stop attacking witnesses in this case and prejudicing the venire.”

Chutkan thanks the parties and recesses for 15 minutes. When she comes back, she’s ready to give her decision. A full order will come later, she says, but for now, the basic contours of the decisions are as follows. First, she’ll deny the jury pool survey requirements that the government has asked for. 

Then, she says she’ll grant in part and deny in part the motion concerning extrajudicial statements. She says that the defense has sought to portray all statements in this case as political speech of a candidate, protected by an absolute First Amendment right. But that’s wrong, she says. The court must safeguard the administration of justice and protect witnesses from intimidation, and the court can craft an order that is narrowly tailored to achieve those ends. 

First, Chutkan will not impose any restrictions on statements about D.C. or the jury pool. She’s confident that voir dire can correct for bias resulting from such statements. But she says will consider these statements if Trump chooses to try and change the venue for this case.

She also won’t restrict any statements about the Biden administration or the Justice Department and won’t bar statements claiming that the case is politically motivated, she says. 

She will, however, prohibit all parties from making derogatory statements—or reposting any such statements—about the special counsel or his staff, and any of Judge Chutkan’s staff or court personnel. It also goes without saying that statements about the families of any of these parties are not allowed either. She specifies that attacks prohibited in this realm include using words like “deranged” or “thug.” Trump doesn’t have “carte blanche” to implicitly encourage violence against those who are just doing their job, she says.

She will also prohibit all statements about witnesses and the substance about their testimony: If Trump wants to criticize Pence, he can, for instance, but he can’t talk about Pence as he pertains to this prosecution.

In all, Chutkan says that Trump is allowed to seek the public’s support in the election, debate policies, criticize the current administration, and assert beliefs that the case is politically motivated. But he’s not allowed to have a “pre-trial smear campaign” against the court’s and special counsel’s staff: No criminal defendant would be allowed to do so, she says. The order is consistent with the First, Fifth, and Sixth Amendments, she says, and any violation of it by parties or counsel will result in a consideration of sanctions from her—either upon receipt of a motion or sua sponte.

It is 12:23 p.m., and we’re adjourned.

Hyemin Han is an associate editor of Lawfare and is based in Washington, D.C. Previously, she worked in eviction defense and has interned on Capitol Hill and with the U.S. Mission to the United Nations. She holds a BA in government from Dartmouth College, where she was editor-in-chief of The Dartmouth independent daily.

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