DOJ move for gag order in Trump Jan. 6 case puts judge in tough spot

The Justice Department’s request to impose a narrow gag order on former President Trump comes as courts consider how to address prosecutors’ “derogatory and inflammatory” comments about nearly everyone involved in the Jan. 6 incident. It’s causing a lot of trouble.

The Justice Department said Trump’s comments could taint the jury pool and intimidate witnesses called to testify against him, and that a series of comments made on social media and during the campaign have been linked to the case. It is claimed that there is a risk of damage.

But if the request is granted, it would raise First Amendment issues for the candidate and address President Trump’s long-standing claims that the Justice Department’s actions are aimed at harming his electoral prospects. It will have an impact.

And the stakes are high for Trump, who is prone to making such statements and ignoring staff warnings, and who could face fines and even jail time for violating such orders. .

“The devil is in the details. How can a former president make any outlandish or outrageous statements he desires, while maintaining his right to declare his innocence, while issuing orders to draw the line at coercive statements?” Is it structured like this?” said Jeff Robbins, a former state prosecutor who is now in private practice.

“The judge has to look not too far down the road and think to himself, ‘Okay, if he’s going to do this, then I’m going to have to do this too.'”

In making the case, the Justice Department cited a series of comments from President Trump, who attacked those dissenting that the election was stolen in late 2020, and targeted witnesses, prosecutors and the judge who oversaw the Jan. 6 incident. He cited numerous comments from President Trump. case.

“Since being indicted in this case, the defendant has disseminated almost daily derogatory and inflammatory posts on Truth Social regarding residents of the District of Columbia, courts, prosecutors, and potential witnesses,” Special Counsel Jack said. – Smith’s team said. I wrote in the abstract.

“Defendant knows that by publicly attacking individuals and organizations, he will encourage others to threaten and harass his targets,” they wrote.

Still, Trump will be free to comment on the case, including declaring his innocence.

Laurie Levenson, a criminal law professor at Loyola Law School, said this is a complex issue and the difference between treating President Trump like any other criminal defendant and properly considering the First Amendment. He said there is a need to strike a balance between the two.

“The court cannot give the message that Donald Trump is not subject to the same legal standards. I think that’s very dangerous,” she said.

“Obviously, Donald Trump doesn’t take the remarks the same way as everyone else. So I’m wondering if this gives him enough notice as to when he’s going to cross the line… He has a tendency to speak ad hoc, inflammatory phrases.”

President Trump quickly made it clear that he considered the request an attack on his free speech rights and his campaign.

“Deranged Jack Smith, he’s a prosecutor, he’s a deranged person, let’s take away my First Amendment rights,” Trump said in a speech hours after the Justice Department filed the motion. ”. “He wants to take away my right to speak freely and openly.”

“Never forget that our enemies are trying to stop us, because we are the only ones who can stop them,” the former president continued. “They are trying to take away my freedom because I will never allow them to take away your freedom.”

Still, Levenson and Robbins said they would want to establish a record where Judge Tanya Chutkan would set clear guidelines for Trump and warn him about what kinds of statements could jeopardize the case. .

“I’m worried [about] Anything that crosses the line into something derogatory, inflammatory, or intimidating. Here the Department of Justice might say, for example, “just like what we submitted in the complaint.” But, you know, he’s just going to find new phrases, so it’s going to be like whack-a-mole,” Levenson said of Trump, adding that a warning may be needed before a formal order is issued. he added.

“If he makes an inflammatory statement, the judge will say, ‘Warning, no.’ You whack that mole. He’ll make another inflammatory statement…. It’s quite a stretch to try to get him to behave outside the courtroom the same way you would expect him to behave in the courtroom.”

Robbins noted that the issue is also more difficult for Chutkan because President Trump has also filed an order asking him to recuse himself from the lawsuit.

“One of the things lurking in the background is that I’m sure his lawyers have that in mind as well. Maybe he’s the same way — this move is because she’s stepping back. Therefore, he and his lawyers need to be careful not to give her a motion to stay in place when the judge makes or responds to the order. I know,” he said.

“He and his legal team know she must be, and it’s a particularly vexing problem for her. Deciding how to deal with this protective order issue is an additional challenge for her. It’s a source of trouble.”

Former federal prosecutor Renato Mariotti said Chutcan was already considering ways to address his speech and avoid the issue of a gag order, saying a judge had already taken a liking to Trump’s comments. Trump’s March trial date may have to be moved up if outside factors arise, he said. jeopardizes the court’s ability to administer a fair trial;

“Actually, I think she’s likely to do that because it’s not really appellate reviewable and she has broad discretion to do so. Speeding up the trial date sends a message to Donald Trump rather than putting himself in this difficult situation of trying to police Donald Trump’s speech, which is always a difficult situation for judges. It seemed to me that’s the way to go,” Mariotti said during an appearance on MSNBC last week.

In some ways, this situation could be a win-win for Trump. In an attempt to politicize the gag order request, he sent out a fundraiser telling his supporters, “If Joe Biden has his way, this will be the last email I send you.”

Trump’s explanation of the order is not accurate, as he can continue to discuss the matter publicly.

Ford O’Connell, a Florida-based Republican strategist, said the Trump campaign believes the country has a two-tiered judicial system and that the gag order will only reinforce that idea among some people. He pointed out that the emphasis is on emphasizing ideas. That he is being unfairly targeted.

“They’re definitely going to rally around him more than ever and he’s effectively the candidate at this point,” he said.

Although the order could allow President Trump to challenge the First Amendment in court or on the campaign trail, Robbins noted that free speech protections are not absolute.

“The fact that he’s running for president is unusual, but it doesn’t change the basics of the case law. Courts have a right to do justice by blocking statements that could reasonably be considered to interfere with jury selection.” “There is an inherent power to protect the administration of justice,” Robbins said.

Brett Samuels contributed.

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