Below is a longer version of my column in the New York Post on the gag order motion docketed Friday night in Washington, D.C. by Special Counsel Jack Smith. While described by Smith as “narrowly tailored,” even a cursory consideration of the broad scope and vague terms belies such a claim. It would sharply limit the ability of former President Donald Trump to publicly discuss the evidence and allegations in a case that is now at the center of the presidential campaign.
Here is the column:
Ronald Reagan once said, “The nine most terrifying words in the English language are: I’m from the Government, and I’m here to help.”
After Friday night, we can add nine more: “a narrowly tailored order that imposes modest, permissible restrictions.”
Those words were used by Special Counsel Jack Smith to propose a gag order that would sharply curtail the ability of former President Donald Trump to criticize Smith and his prosecution.
The Smith motion is anything but “narrowly tailored.”
Indeed, short of a mobile “Get Smart” Cone of Silence, it is chilling to think of what Smith considered the broader option.
Smith told District Judge Tanya Chutkan in Washington, D.C., that Trump could “present a serious and substantial danger of prejudicing” his 2020 federal election interference case.
Smith compared Trump’s comments on the trial to the “disinformation” spread by Trump after the 2020 election — the subject of the indictment.
The motion states that Trump’s “recent extrajudicial statements are intended to undermine public confidence in an institution — the judicial system — and to undermine confidence in and intimidate individuals — the Court, the jury pool, witnesses, and prosecutors.”
I have long criticized Trump’s inflammatory comments over these cases, but Smith’s solution veers dangerously into core political speech in the middle of a presidential election.
Ironically, Smith’s move will likely be seen as reinforcing Trump’s claim of intentional election interference by the Biden Administration.
I do not view it that way, but I do believe Smith is showing his signature lack of restraint in high-profile cases, a tendency that led to the unanimous overturning of his conviction of former Virginia Republican Gov. Robert McDonnell.
Smith seeks to bar comments “regarding the identity, testimony, or credibility of prospective witnesses” and “statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.”
Gag orders have become commonplace in federal trials, particularly high-profile cases.
I have criticized the increasing use of gag orders for years due to concerns over the free speech. Typical orders often seek to shutdown public comments in the interests of protecting jury pools. Even “narrower” orders are written with vague terminology like “disparaging” and “intimidating” that expose defendants to punitive action if they cross uncertain lines in public defending themselves. No one seriously questions the ability of courts to limit the release of sealed material or to bar threatening comments directed at jurors, witnesses, or court staff. Moreover, there are laws on the books allowing for the prosecution of cases of threats or efforts to influence jurors or witnesses.
More importantly, this is no typical case.
Smith has pushed for a trial before the election and the court inexplicably shoehorned the trial into a crowded calendar just before the Super Tuesday election.
Judge Chutkan previously stated that “I cannot and I will not factor into my decisions how it will factor into a political campaign.”
This motion, however, would impose substantial limits on a national political debate and begs the question of whether the court is failing to balance the rivaling constitutional interests in this unprecedented situation.
It could not only test Chutkan’s position but prompt an early appeal.
One of the top issues in this presidential campaign is Trump’s insistence that the Justice Department and the criminal justice system have been weaponized by Democrats.
He was running on that issue even before the four separate criminal cases were filed against him in Florida, Georgia, New York, and Washington, D.C.
More importantly, it is an issue that is resonating with tens of millions of Americans.
One poll showed 62% of the public viewed the prosecutions as “politically motivated.”
Another poll shows that 65% still view the prosecutions as “serious.” Between these polls is found a raging debate among citizens and candidates over the merits and motivations of these cases.
Under Smith’s proposed motion, almost everyone (including Biden) will be able to discuss this case but Trump himself.
Disparaging criticism of Smith or key accusers could land Trump in jail under an ambiguous standard.
That is a rather hard standard to respect when you are alleging that Smith is part of a politically motivated hit job.
Moreover, gagging Trump would not impact the level of inflammatory or insulting commentary.
By scheduling a trial of the leading candidate for the presidency in the middle of the election season, the cases will continue to occupy a high level of coverage and commentary.
This jury pool will be inundated with such commentary on both sides and Trump’s prior comments on the case will be replayed continually in print, radio, and television outlets.
In light of that reality, the question is whether gagging Trump will materially change the impact on potential jurors.
Conversely, it will gag a candidate on a major issue before the public.
Worse yet, one of the potential witnesses is one of Trump’s opponents: former Vice President Mike Pence.
Other potential witnesses are political figures who have engaged in commentary on the underlying allegations.
To be clear, I criticized Trump’s Jan. 6 speech while he was giving it.
I supported Vice President Mike Pence and his certification of the election of Joe Biden.
Despite my disagreement with Trump on that day and his claims of voting fraud, he is making his case to the American people on his past conduct.
This was not some manufactured claim to allow him to poison a jury pool. It has been building for years and long ago some of us predicted that this election would be the largest jury verdict in history.
These courts have elected to daisy-chain trials before the election.
The timing guaranteed the maximum level of coverage and commentary. At this point, a broad gag order is like running for a hand pump on the Titanic.
A truly “narrowly tailored” order would focus on comments deemed threatening to witnesses or jurors.
However, banning disparaging and inflammatory comments about the prosecution or accusers would create a Damocles sword dangling over the head of Trump in every speech.
In making his case that he acted lawfully in the prior election, Trump will be pummeled with specific claims from witnesses and the prosecutors.
Moreover, after long alleging the weaponization of the criminal justice system, any comments on the motivation of Smith and the Justice Department will be — by definition — defamation.
Meanwhile, Judge Chutkan’s own comments about Trump have been repeatedly quoted in the media and are the basis for a motion for her to recuse herself.
For example, in sentencing a rioter in 2022, Chutkan said that the rioters “were there in fealty, in loyalty, to one man – not to the Constitution.”
She added that “[i]t’s a blind loyalty to one person who, by the way, remains free to this day.”
Judge Chutkan’s promise not to consider the political campaign in ruling on these motions will now be tested.
The trial of a former president in the midst of a presidential election is a unique situation and may require greater accommodation than Chutkan is inclined to give.
There may be a judicial argument for gagging Trump, but it raises serious constitutional concerns. Is it really worth the cost?