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?
Jonathan Turley is an attorney and professor at George Washington University Law School.
“ANONYMOUS” returns as the Soviet Democrat apparatchik to claim every single act of police state fascism from Jack Smith in service to the Soviet Democrats is justified – and First Amendment rights and an unbiased justice system be damned.
No surprise the cowardly use of “Anonymous” – wouldn’t want your parents regretting they gave birth to a freedom hating police state fascist serving as an apparatchik for a political party reminiscent of Soviet rule.
Maybe “Anonymous” can explain why, with his long previous history of targeting and taking out Republican opponents (to be later overturned and chastized) for the police state fascist Obama/Biden administration, Jack Smith actually fits the job description of an unbiased Special Counsel that most Americans would agree can’t be suspected of being a hit man for one of the political parties?
Any justification for why Americans should believe there’s little chance that Jack Smith won’t function as a Spviet Democrat hit man THIS time, “ANONYMOUS “?
My my, you not only sound desperate, you voice unrealistic fantasies regarding the reality of the situation:
“A court is not going to allow a defendant to deliberately taint the jury pool or intimidate witnesses and prosecutors”
Are you pretending that the DC court, the DC jury pool and the DC prosecutors are not the most biased in the land? Pretending and hiding with the cover of theory will not fix this situation.
Q. If you’ve been lied about, you’re family lied about, constantly attacked on and off your job, literally persecuted for, let’s say 7 years, now find yourself in a position to return the favor. Would you?
When i read the headline, i thought this was a followup on the sex worker story from yesterday…
Reading just the headline is drivel that makes the rest not worthy of reading.
Trump committed an insurrection and is lucky to not be swinging from a rope by his neck for his disgusting behavior on January 6. Any other interpretation of this is just nonsense and you know it.
So are you confessing that you didn’t read the article before commenting on it?
Will the Soviet Democrat’s Useful Idiots defending their police state facism ever quit repeating the lie Trump engaged in insurrection?
They repeat that lie – despite the fact their version of Lavarentiy Beria, Jack Smith, hasn’t charged Trump with insurrection, and the FBI said there was no insurrection.
Given that the Soviet Democrat’s and their fellow police state fascists cheered the assault on the White House resulting in Trump and his family being evacuated and 50 Secret Service being sent to hospital with wounds from repelling the attack… maybe their excuse is that they have two different versions of what “insurrection ” means.
In case you missed it: On Friday night — very shortly after Smith filed his request for a gag order — Trump had this to say about the political prosecutions happening in the Joetard administration, beginning at the 32:56 mark, and continuing for less than a minute, to the 33:51 mark:
Don’t be surprised if Smith doesn’t amend his request to include this for Chutkan to consider.
Hillary Clinton’s lawyer now a judge … Her past performance working with the DNC and Democrats should disqualify her.
Does the history of Justices Roberts, Kavanaugh, and Barrett working for Republicans disqualify them?
And which politicians were they working for?
GW Bush.
LOL, there he is again—-makin’ sh!t up
No, Tom the Troll, you’re just ignorant.
https://welovetrump.com/2020/11/09/kavanaugh-roberts-and-barrett-were-all-attorneys-representing-bush-in-bush-vs-gore/
No more than Sonia Sotomayor being incompetent, running an extortion racket from her chambers with the assistance of government employees and being otherwise clueless on legal matters disqualifies her.
Some of the attornies that worked for Clinton were involved in such shady dealings they should not be judges. They weren’t defending her or the claims against her. They were the lawyers helping potential crimes happen before they did.
I for one applaud Jack Smith’s “narrowly tailored,” and the obvious bias by judge Chutkan.
Their words and actions continue to put on full display how they have brought American down to banana republic status.
Well done, I say, well done.
/sarc off.
Actually this could play into Trump’s advantage.
Let’s assume the gag order is approved. Trump will not sit still for it. If he’s threatened with jail time, he won’t back down. And let’s say law enforcement personnel show up at Trump’s doorstep to take him to jail, along with his contingent of US Secret Service agents. Guess what kind of reaction that will cause across the country/
“ANONYMOUS” returns as the Soviet Democrat apparatchik to claim every single act of police state fascism from Jack Smith in service to the Soviet Democrats is justified – and First Amendment rights and an unbiased justice system be damned.
No surprise the cowardly use of “Anonymous” – wouldn’t want your parents regretting they gave birth to a freedom hating police state fascist serving as an apparatchik for a political party reminiscent of Soviet rule.
Maybe “Anonymous” can explain why, with his long previous history of targeting and taking out Republican opponents (to be later overturned and chastized) for the police state fascist Obama/Biden administration, Jack Smith actually fits the job description of an unbiased Special Counsel that most Americans would agree can’t be suspected of being a hit man for one of the political parties?
Any justification for why Americans should believe there’s little chance that Jack Smith won’t yet again function as a Soviet Democrat hit man THIS time, “ANONYMOUS “?
Turley can’t even get basic facts right. “the gag order motion docketed Friday night” wasn’t docketed on Friday. It was docketed around Sept. 5, and partially unsealed on Friday.
“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.”
Right. Defendants lose some of their speech rights. Defendants aren’t supposed to be commenting publicly about the prosecutor, the witnesses, the potential jury. They risk tainting the jury pool.
And a reminder about what Judge Chutkan previously said about protecting the jury pool from Trump’s interference: she’d move up the trial date.
“Turley can’t even get basic facts right. ‘the gag order motion docketed Friday night’ wasn’t docketed on Friday. It was docketed around Sept. 5, and partially unsealed on Friday.”
Then why is the Gag Order Motion file stamped “Filed 09/15/23” ? ? ? ? ? Are you suggesting that the Clerk of Court in the DC District Court forged the file stamp ? — or maybe that the DC District has its own local definition of the word “Filed” ? ? ?
https://www.courtlistener.com/docket/67656604/57/united-states-v-trump/
And if you look at the case docket itself — https://www.courtlistener.com/docket/67656604/united-states-v-trump/ — you’ll see that document 57 says “Attachments: # 1 Exhibit, # 2 Text of Proposed Order Exhibit 47-5, # 3 Text of Proposed Order Exhibit 47-6,” and that on September 5, it says “The Clerk of the Court is directed to file under seal the unredacted copy of the Government’s Motion (ECF No. 47-1), attaching Exhibit 1 to the Government’s Motion (ECF No. 47-2). The Clerk of the Court is further directed to file on the public docket the redacted copy of the Government’s Motion (ECF No. 47-3), attaching a placeholder sheet for Exhibit 1 to the Motion (ECF No. 47-4), and the two proposed orders referenced in the Motion (ECF Nos. 47-5 and 47-6).” As I said, it was docketed around Sept. 5, and partially unsealed on Friday.
Who gives a rats a$$ when it was docketed you tool?
You reserve the right to be the only one to make sh!t up? You do it ALL the time.
LOL — you are grotesquely misinterpreting or misrepresenting what that language means. Reference to “Exhibits” is NOT the same as reference to a MOTION, and the MOTION is identified as number “57” not “47.” The Exhibits were previously filed and are proposed Orders for the judge to sign. The ARGUMENT that Smith is making was filed last Friday, 9-15-23, NOT 9-5-23.
Like i said Ralph, he loves to make sh!t up. Every time he is asked for his source he scurries away or calls names. Now we see why. He can’t even read.
Nope. On Sept. 5: “The Government’s 47 Motion for Leave to File Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket is hereby GRANTED. The Clerk of the Court is directed to file under seal the unredacted copy of the Government’s Motion (ECF No. 47-1)…” That motion was simply unsealed on Friday.
LOL — and yet the Motion is enumerated as docket entry “57” on the docket, NOT docket entry “47-1.”
Which doesn’t change the fact that the motion was docketed on Sept. 5.
Which doesn’t change the total irrelevance of it.
In other words it wasn’t filed on September 5.
Defendants do not lose any speech rights, and defendants have an absolute right to criticize any government official at any time in any way, including the prosecutor.
The notion that Trump can interfere with the jury pool is stupid, but if he could he would have an absolute right to do so in response to the Left’s wildly successful interference with it.
Trump is an unguided missile…gaging him may be the best thing for his election…at least attorneys and campaign staff could get some sleep.
“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.” And “Typical orders often seek to shutdown public comments in the interests of protecting jury pools.”
Hilarious! Undermine “confidence” and “protecting” a jury pool in what is widely perceived as the most biased jury pool and district court in the land? That confidence is long gone, Jack. And you and people like Tanya got us to this point.
We will now get a first hand look first hand look at what District Judge Tanya Chutkan is made of and whether or not the title of “judge” has truly evolved into a state of mockery.
Trump is the one undermining the judicial system. He’s the one harping about how unfair and unjust it is because he “didn’t do anything wrong”.
Trump believes he’s above the law because he’s a billionaire and a former president. He’s treating this as an inconvenience, an obstacle. He’s not accountable for anything. Because he’s Trump.
Was Ted Kennedy above the law? As Mary Jo Kopechne.
Was Bill Clinton above the law? Ask Monica about what Bill testified and lied under oath.
Was Hilary Clinton above the law? Who approved and paid for the dossier and then played stupid as the media covered up and millions in tax $ were spent
Was Eric Holder above the law? Fast and Furious to the point he was found to be slow and dumb.
Is Joe Biden above the law? You could go on forever here but stealing classified documents out of the Senate SCIF and hiding them in a garage is a start.
You reveal yourself to be a partisan hack that is drunk on the kool-aide passed out by your Dim handlers.
Democrats have long been “not accountable for anything”. Wake up.
Think maybe some/all attorney orgs are bad?
Americans haven’t ALREADLY lost faith in the justice system? Smith lives in his own Democrat world. It doesn’t take much thought to realize this is all political prosecution of a popular presidential candidate on the part of a consortium of people including but not limited to former President Barack Obama, the Clintons, George Soros and God only knows who else. (Probably not Biden, he’s a puppet and they’re pulling his strings.) The Bushes may also be involved – they just tried to get the Texas attorney general removed from office, but failed. The 62% of Americans who believe this is political are right.
If a gag order can be appealed, and stayed pending appeal, Chutkan’s issuance of an order may be good for Trump. It will bolster his argument that the Biden DOJ and judicial system are engaged in election interference by stifling his 1A rights and will get his argument before the D.C. Circuit and possibly Supreme Court much earlier than would otherwise have been the case.
I say the fix is in. This Judge will issue the order and it will be anything but narrow!
If any party is undermining public confidence in the judicial system, it’s the Democrats with their rants every time the Supreme Court doesn’t vote their way. Maybe Chuck Schumer, who openly threatened the SC conservative justices, should be tried for fomenting an insurrection against the Court.
Gag orders are dangerous to truth-finding and are used more often than not for information vital to society as a whole and its well-being.
This week, Judge Alito’s ruling does the same as Smith’s desire for a gag order. The Supreme Court is VERY political.
It is for sure the United States is on a dangerous path to becoming full-fledged communism.
US Supreme Court Issues Emergency Order | Facts Matter: https://www.theepochtimes.com/epochtv/us-supreme-court-issues-emergency-order-facts-matter-5492474?est=TUD5U8aqTc88PMQy4Z7nrjwEYRpS36ahhp66cuMsU4N0aJJ7x3VPfhgqHFiZoo4lS40%3D?utm_campaign=socialshare_email&utm_source=email
Smith is playing right into Trump’s hands, likely because he thinks the judge will go along with his desire to silence Trump. To my way of thinking, Smith’s expectation in that regard is further evidence that the judge needs to recuse herself from the case and that the next move by Trump — for a change of venue — is probably also necessary.
Nothing says “recusal and change of venue” like an overly-confident prosecutor bringing a political case against a republican in virtually homogenious democrat venue while a presidential campaign is in full swing.
Can’t wait to read Trump’s lawyers’ Response to Smith’s request for a gag order. Destined for the history books, it should be quite a read.
Judge Chutkan’s public statements illustrate to me that she is a committed Democratic partisan. She will issue as many gag orders as Jack Smith needs until she is overturned, “narrowly tailored” or not.
fascism doesn’t care about wise or narrow. They CARE ABOUT POWER. Anyone go to jail for the biggest conspiracy in American History….The Russian Hoax…I mean other than people around Trump? Democrats are fighting a CIVIL War…their 2nd….Republicans aren’t!