Trump placed under limited gag order in federal election case in D.C.

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A federal judge issued a limited gag order Monday against Donald Trump, saying the former president must stop disparaging prosecutors, witnesses and court personnel involved in his upcoming D.C. trial on charges of conspiring to obstruct the results of the 2020 election.

The decision by U.S. District Judge Tanya S. Chutkan takes the country further into legally and politically uncharted territory with a criminal defendant who is known for incendiary public statements and is also a leading 2024 presidential candidate.

“Mr. Trump is facing felony charges, and he does not get to respond to every criticism if that response could affect a potential witness,” Chutkan said in court. “He doesn’t get to use all the words.”

But the judge declined to impose restrictions as broad as the Justice Department wanted, saying Trump was free to verbally abuse President Biden, his likely rival in the 2024 election. Trump can also claim that the case against him is politically motivated, as long as he doesn’t denigrate individual prosecutors.

“Mr. Trump can certainly claim he’s being unfairly prosecuted, but I cannot imagine any other case where a defendant is allowed to call the prosecutor ‘deranged,’ or a ‘thug,’ and I will not permit it here simply because the defendant is running a political campaign,” Chutkan said, quoting from past Trump statements to make her point.

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The judge did not immediately indicate what types of punishment she would consider for violations of her order; courts generally have considered house arrest, fines or jail to quiet defendants who violate such gag requirements.

Before the written order was even issued, Trump vowed to appeal, asked his supporters to respond with campaign donations, and issued a statement that seemed to dance around the line Chutkan had drawn between attacks on the justice system and attacks on the Biden administration.

“Today’s decision is an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden, who was granted the right to muzzle his political opponent,” the unsigned statement from the Trump campaign said. “President Trump will continue to fight for our Constitution, the American people’s right to support him, and to keep our country free of the chains of weaponized and targeted law enforcement.”

Campaigning in Iowa, Trump called the gag order “so unconstitutional,” falsely claiming that he was “the only politician in history who runs who’s not allowed to criticize people.” He also hinted that he might escalate the conflict. “What they don’t understand is I am willing to go to jail if that’s what it takes for our country to win,” he said.

Chutkan’s order does not extend to Trump’s other three pending criminal trials: an election-obstruction case in Georgia, a classified-documents case in Florida and a case in New York related to a hush money payment during the 2016 campaign.

But because Justice Department special counsel Jack Smith is prosecuting both the D.C. case against Trump and the Florida charges, there are implications for Trump’s conduct in the Florida case as well. And it’s possible some witnesses in the D.C. case who fall under the new gag order — such as Gen. Mark A. Milley, the former head of the Joint Chiefs of Staff — could also be called as witnesses in the documents case or the Georgia state case, in which Trump is accused of trying to obstruct the 2020 vote counting there.

Some legal experts have said an appeals court or Supreme Court fight over the gag issue could push the D.C. trial past its planned March start.

How candidate Trump’s claims may hurt defendant Trump

The judge tried to walk a fine line on criticism of potential witnesses such as Mike Pence, Trump’s former vice president and current rival for the GOP nomination.

“I will prohibit statements about potential witnesses or the subject of their testimony,” Chutkan said. “If Mr. Trump wants to criticize his political rival, Mr. Pence, he may do so, but he cannot make statements about Mr. Pence’s role in the events in this case. … Without this restriction there is a real risk that other witnesses may be intimidated or unduly influenced, and that other witnesses may be reluctant to come forward lest they be subjected to the same harassment and intimidation.”

The ruling marks the second gag order Trump has gotten this month. A judge overseeing a civil fraud trial in New York against Trump’s real estate business imposed a more narrowly tailored order barring him from discussing court personnel in that case. The judge issued that order after Trump used social media to identify and malign a court staffer.

That incident clearly weighed on Chutkan, who said she was “deeply disturbed” to see Trump single out a court clerk with a baseless and inflammatory claim. The judge said Trump’s campaign to return to the White House “does not give him carte blanche to vilify and implicitly encourage violence against public servants who are simply doing their job.”

Trump is not required to be present for the civil trial in New York. But he attended the first few days of the proceedings, and his attorney said in court in New York on Monday that Trump is expected to return Tuesday.

At Monday’s hearing in D.C., prosecutor Molly Gaston argued that Trump had already crossed the line with some of his public statements about the D.C. case. She said that if he was not reined in, his words would taint the D.C. trial even before it began.

“We have no interest in stopping the defendant from running for office or defending his reputation, nor does our proposed order do that,” Gaston said. The goal, rather, was to keep him “from trying this case in the court of public opinion,” which “cannot and should not happen.”

Trump’s disparaging statements against witnesses might fall short of the kind of threats barred by law, Gaston said, but they “risk influencing both the individual who has been publicly attacked and other witnesses who see the public attack and are perhaps chilled.”

Beyond that, she said, having D.C. residents “inundated by public and sometimes false renditions of the expected evidence” would taint the jury pool.

Chutkan rejected prosecutors’ request that Trump be barred from making negative comments about D.C. residents. While the judge expressed distaste for Trump’s claim that he could not get a fair trial in what he has described as a “filthy crime-ridden embarrassment” of a city, she also said she could deal with such comments when sorting through potential jurors.

When Trump attorney John Lauro defended his client’s public statements by saying that Trump is “entitled to speak truth to oppression,” the judge cut him off, saying, “I do not need to hear any campaign rhetoric in my courtroom.”

Chutkan and Lauro jousted repeatedly during the hearing, and the judge at one point laughed when Lauro said there had been no threats and no intimidation from Trump. She cited Trump’s social media post about Milley, which claimed that a phone call the general made to his Chinese counterparts in early 2021 was “an act so egregious that, in times gone by, the punishment would have been DEATH.”

If Trump suggests “that someone is deserving of execution,” Chutkan said, “then it’s not a far stretch to imagine a situation where one of the millions of followers of this person decides to do that.”

Lauro argued that the statement about Milley was not a threat, and he said it would be nonsensical to limit the speech of politicians to try to prevent unpredictable acts of extremist violence.

Gaston, the prosecutor, said Lauro was trying to split hairs and Trump’s meaning was clear: “We both know that the tweet or the post about General Milley was a threat. It was a threat to him, and it was a threat to all witnesses in this case: If you come after the defendant, he will come after you.”

Lauro also said a gag order was unwise partly because it would be impossible to enforce. “Is your honor going to put President Trump in jail during the course of a campaign?” the lawyer asked. Chutkan did not reply.

A woman has already been arrested and charged with threatening to kill Chutkan if Trump’s path to becoming president again was blocked.

At a hearing in early August, Chutkan declined to set strict limits on what Trump could say, beyond barring discussion of sensitive case materials. But she warned Trump she would not tolerate “inflammatory statements” that “intimidate witnesses or prejudice potential jurors.”

Former federal prosecutor and University of Michigan law professor Barbara McQuade called Chutkan’s order “necessary and legally sound” but said the real test will come if and when Trump violates the order. “If Trump does not respond to monetary sanctions, she has to be prepared to cancel his bond and jail him at some point,” McQuade said.

In the 1980s, then-Rep. Harold E. Ford (D-Tenn.) faced a gag order while awaiting trial on corruption charges. In that case, an appeals court eventually lifted the order, saying it violated his First Amendment right to free speech. Ford, a Black lawmaker, publicly maintained that he was being treated unfairly by the Reagan Justice Department and a specific prosecutor whom he repeatedly called a racist.

In that era, gag orders were fairly rare. But they became more common after the O.J. Simpson trial in 1994 turned into a televised spectacle and raised concerns that publicity could affect the outcomes of legal proceedings.

The U.S. Supreme Court has never weighed in on gag orders restricting what the parties in a case may say. In 2006, the Supreme Court declined to intervene when a judge put a gag order on the attorney for a witness in a murder case.

“The law isn’t any more settled than it was then,” said Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, who wrote that appeal.

The rules governing D.C. federal court allow for such gag orders when, in “a widely publicized or sensational criminal case,” out-of-court statements are “likely to interfere with the rights of the accused to a fair trial by an impartial jury.”

Isaac Arnsdorf in Adel and Clive, Iowa, and Shayna Jacobs in New York contributed to this report.

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