WASHINGTON — A federal judge on Monday imposed a partial gag order against former President Donald Trump in his D.C. election fraud case, saying she wouldn't allow him to conduct a "pre-trial smear campaign" on prosecutors or potential witnesses.
Special Counsel Jack Smith’s office last month asked U.S. District Judge Tanya S. Chutkan to restrict Trump’s “extrajudicial statements” about his federal criminal case in D.C. and limit what questions he can ask in pre-trial polling of the potential jury pool. Trump faces four felony counts alleging he unlawfully conspired to overturn the results of the 2020 election.
“Since the grand jury returned an indictment in this case, the defendant has repeatedly and widely disseminated public statements attacking the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses,” Senior Assistant Special Counsel Molly Gaston wrote in a motion last month.
Trump, who has a history of attacking judges and prosecutors involved in cases against him, has repeatedly gone after Smith – who he has called “deranged” and a “lowlife” – Attorney General Merrick Garland, Chutkan and potential witnesses in the case. On his social media platform Truth Social last month, Trump wrote that now-retired Chairman of the Joint Chiefs of Staff Gen. Mark Milley, who is named as a witness in the indictment, had committed a “treasonous act” that was potentially punishable by death. Trump has also repeatedly attacked his former Vice President Mike Pence, who is both a potential key witness in the government’s case and one of Trump’s rivals for the 2024 Republican presidential nomination.
On Monday, Chutkan denied part of the government's motion seeking limits on what questions Trump can ask in pre-trial polling, but did agree to impose additional restrictions barring Trump from publicly attacking the Special Counsel or his staff, her own staff and potential witnesses in the case.
“His presidential candidacy does not give him carte blanche to vilify or encourage violence against public servants just because they are doing their job," Chutkan said.
The judge said her order would carve out exceptions to allow Trump to talk about Pence in the context of their rival political campaigns.
Chutkan, who received a death threat containing racial epithets herself after being randomly assigned to the case in August, said she was concerned about the effect Trump continuously attacking known witnesses in the case — including Pence, Milley, former Attorney General Bill Barr and Georgia Secretary of State Brad Raffensperger — would have both on their eventual testimony and on other, less high-profile witnesses' willingness to come forward. She pointed specifically to Trump's comments about Milley.
"Why is it appropriate to write in all caps 'DEATH' about a potential witness in this case?" Chutkan asked Trump's attorney John Lauro. "That's right up to 'won't someone rid me of this meddlesome priest.'"
Lauro vehemently opposed any additional restrictions on Trump's speech and repeatedly argued the government was engaging in "censorship" of President Joe Biden's likely political opponent in the 2024 presidential election. He also argued the high-profile political figures Trump has spoken publicly about have not been chilled by his criticisms.
"None of these are threats, obviously," Lauro said.
"No, no. I disagree," Judge Chutkan responded. "I don't think it's obvious."
During the January 6th Committee hearings, Congress heard abundant testimony about the effect of Trump publicly calling out individuals. During a June 2022 hearing, the committee played a portion of an interview with Michigan State Majority Leader Mike Shirkey, who said after he told Trump he wouldn’t break the law for him Trump posted his personal cell phone on social media – which resulted in 4,000 messages, many threatening. Rusty Bowers, the former Republican Speaker of the Arizona House of Representatives, said he too received “tens of thousands” of messages to his office after he declined to assist Trump and his attorney, Rudy Giuliani. Bowers said a video panel truck began driving past his house proclaiming that he was a corrupt politician and at one point a man wearing a militia patch and carrying a gun came to his home.
“The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets,” Gaston wrote in her motion.
While gag orders are not uncommon, judges typically resort to them only when they feel there’s no less-restrictive means of preventing the case from being prejudiced by inappropriate public comments. For Trump, however, there was already precedent. Earlier this month, the judge presiding over Trump’s civil business fraud trial in New York imposed a limited gag order barring him from attacking court staff after he published a post attacking the judge’s law clerk. Chutkan said Monday she was "deeply disturbed" by the circumstances that led to that order.
"Such behavior puts court staff — who are just doing their jobs — at tremendous risk of harassment and is totally unnecessary for Mr. Trump to proclaim his innocence or campaign for president," Chutkan said.
Monday's order was the second loss for Trump's attorneys in their efforts to avoid limits on what he can say about the case as he seeks to make his prosecution a central issue in his third run for the presidency. Chutkan previously imposed a protective order that limited Trump from releasing witness transcripts and other evidence in the case. In his response to the government’s latest request, Lauro argued prosecutors were seeking to “muzzle” Trump and strip him of his First Amendment freedoms.
“At bottom, the Proposed Gag Order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls,” Lauro wrote.
Chutkan on Monday denied the government's motion to bar Trump from criticizing the District of Columbia — which he recently called crime-ridden and "rat-filled" — or from criticizing the Justice Department or government generally. She said he can also continue to attack the prosecution as politically motivated.
Trump's attorneys have said they may file a motion seeking to move the case out of D.C. Chutkan is also still considering a motion to dismiss the case outright on the grounds of presidential immunity filed by Trump’s attorneys last week.
Trump himself was not at the hearing on Monday as he traveled to Iowa to campaign for the Republican nomination for president, however on Truth Social he repeatedly posted about the proceeding and accused the Biden Administration of "election interference."
"The TRUMP GAG ORDER that the CORRUPT Biden Administration is trying to obtain is totally Unconstitutional!" Trump wrote shortly after the hearing began.
Chutkan suggested if Trump was unwilling to abide by her gag order she could deny his ability to waive his presence for future hearings, among other possible sanctions. Trump is currently scheduled to begin trial in the case on March 4 in D.C.