The judge overseeing Donald Trump’s federal election interference case has pushed back against defence claims that a proposed gagging order would unfairly censor the Republican’s political speech, but she also suggested prosecutors’ request could be too broad.
US District Judge Tanya Chutkan is considering a request to impose the narrow order aimed at reining in Trump’s rhetoric about potential witnesses, prosecutors and others involved in the case in Washington DC.
In seeking the order, special counsel Jack Smith’s team has accused the 2024 Republican presidential front-runner of using online attacks to try to undermine public confidence in the justice system and taint the jury pool.
Trump’s lawyer John Lauro accused prosecutors of “seeking to censor a political candidate in the middle of a campaign”, but the judge hit back that Trump “does not have a right to say and do exactly as he pleases”.
“You keep talking about censorship like the defendant has unfettered First Amendment rights. He doesn’t,” Judge Chutkan said. “We’re not talking about censorship here. We’re talking restrictions to ensure there is a fair administration of justice on this case.”
The judge, who was appointed by Barack Obama, repeatedly warned Trump’s lawyer to keep politics out of the courtroom, and she cut him off when he suggested the case was politically motivated. “Obviously you have an audience other than me in mind,” she told him.
Judge Chutkan, however, told prosecutors she has “some concerns” about the breadth of the order they are seeking.
Prosecutor Molly Gaston told her that Trump’s lawyers are arguing their client is “above the law” and not subject to the same rules as other defendants.
Ms Gaston said Trump knows his posts “motivate people to threaten others”, and she argued they can not only pollute the jury pool but also chill witnesses.
“We have no interest in stopping the defendant from running for office or defending his reputation, nor does our proposed order do this,” she said.
Mr Lauro said Trump had not violated his pre-trial conditions, and those were enough to keep him in check for the future, telling the judge: “What you have put in place is working.”
Chutkan burst out laughing, saying: “I’m going to have to take issue with that,” and reciting a slew of Trump remarks about the jury pool in Washington, Mr Smith and his staff and others.
She also read aloud statements Trump made about her, deriding her as a “radical Obama hack”.
Although she said she is “less concerned” about statements he made about her, she added that his free speech does not extend to language that knowingly invites threats and harassment of “people who are simply doing their jobs”.
The gagging order proposal underscores the unprecedented complexities of prosecuting Trump, who has made the line of attack central to his campaign, and it presents the biggest test yet for Judge Chutkan, who must balance Trump’s right to defend himself publicly with the need to protect the integrity of the case.
While ending the stream of Trump’s harsh language may make the case easier to manage, it could also fuel his claims of political persecution. His campaign has already seized on the proposed order in fundraising appeals, and he has falsely characterised it as an attempt to prevent him from criticising President Joe Biden.
Trump’s defence has called the gagging order request unconstitutional and a “desperate effort at censorship”.
