Gagging Trump

On Monday, Special Counsel Jack Smith and Donald Trump's attorneys will argue a proposed gag order in Smith's January 6 case against the former president. What will Judge Tanya Chutkan do?

Another precedent-setting event related to the criminal prosecution of a former president is scheduled for Monday morning in the federal courtroom of Judge Tanya S. Chutkan in Washington.

Special Counsel Jack Smith is asking Chutkan—an Obama appointee with a record of biased and often inaccurate statements about Donald Trump and the events of January 6 in general—to silence the leading GOP presidential contender on a key campaign issue through the heart of the 2024 primary season.

Smith’s prosecutors and Trump’s defense attorneys will square off during what is expected to be a fiery hearing to debate the special counsel’s proposed gag order ostensibly needed to prevent Trump from unduly influencing the D.C. jury pool with his criticism of the prosecution and those involved. A jury pool, by the way, almost exclusively populated by Democrats with deep contempt for Trump.

Chutkan set a March 2024 trial date for Smith’s four-count indictment against Trump for attempting to “overturn” the 2020 election; the indictment and trial, anticipated to last four to six weeks, represent a history-making case of election interference—a sitting Democratic president using his Department of Justice to ruin his presumptive Republican rival.

But forcing Trump to endure not one but two federal criminal trials isn’t enough to quench the Biden regime’s insatiable appetite for destruction. Smith, citing social media posts and interviews, wants Trump, his lawyers, and even his campaign associates banned from making any comments about the case.

“In service of his criminal conspiracies, through false public statements, the defendant sought to erode public faith in the administration of the election and intimidate individuals who refuted his lies,” Smith wrote in his September motion for a wide-ranging gag order. “The defendant is now attempting to do the same thing in this criminal case—to undermine confidence in the criminal justice system and prejudice the jury pool through disparaging and inflammatory attacks on the citizens of this District, the Court, prosecutors, and prospective witnesses. [The] Court can and should take steps to restrict such harmful extrajudicial statements.”

This creates quite the dilemma for Chutkan, whose “extrajudicial” musings in court assign blame to Trump for January 6 including suggestions he should have been charged and perhaps imprisoned for what happened that day. For example, in a 2022 sentencing hearing for one January 6 defendant, Chutkan claimed that “the people who mobbed that Capitol were there in fealty, in loyalty, to one man—not to the Constitution, of which most of the people who come before me seem woefully ignorant, not to the ideals of this country, and not to the principles of democracy. It's a blind loyalty to one person who, by the way, remains free to this day." (In denying Trump’s motion to recuse herself from the case, Chutkan recently insisted her comments were based on court proceedings and not extensive media coverage, a claim somewhat refuted by a weekend New York Times profile that described her as a “newspaper devotee who consumes every page.”)

Smith dishonestly wrote that his gag order was “narrowly tailored.” But that is far from the truth. Here is the proposed language:

Those witnesses, according to Smith, include GOP presidential primary rival Michael Pence and Trump administration officials including former Attorney General William Barr and former Joint Chiefs of Staff Mark Milley. In short, a prospective witness is whomever Jack Smith says, a list that could encompass dozens of people he has not yet identified.

The special counsel even cited Trump’s criticism of Smith himself as reason to impose the gag order. “The Defendant has posted false and disparaging claims regarding the Department of Justice and prosecution in the Special Counsel’s Office in an attempt to undermine confidence in the justice system. In a video posted to Truth Social, the defendant called the Special Counsel’s Office a ‘team of thugs.’” Smith also took issue with Trump calling Smith “deranged.”

The Special Counsel’s office also noted Trump’s criticism of Chutkan as a “biased, Trump-hating judge” as another reason to impose the speech ban.

Trump’s lawyers responded in pointed fashion, calling the gag order “an extraordinary step of stripping President Trump of his First Amendment freedoms during the most important months of his campaign against President Biden.”

Which obviously is Smith’s motivation. A top DOJ official during the Obama-Biden administration, Smith has his marching orders. In a follow-up motion, Smith wrote that Trump’s candidacy shouldn’t be used as a “cover for making prejudicial statements about this case.”

After Monday’s hearing, it is Chutkan’s next move.

And Team Trump should be worried.

Not only does Chutkan have a history of making outlandish remarks in January 6 cases, she wrote the opinion that pierced presidential privilege and forced Trump to produce his records to the January 6 Select Committee. She also ruled against the Trump administration in cases involving illegal immigrants seeking abortions. Given her brazen partisanship from the bench, it is safe to assume her gag order is already a work in progress.