Below is my column in The Messenger on the renewed effort of Special Counsel Jack Smith to gag former President Donald Trump. At the same time, Judge Arthur Engoron has repeatedly fined Trump for his public statements about the New York fraud case. Engoron declared this week “Anybody can run for president. I am going to protect my staff.”
There is widespread support for barring attacks on court staff and Trump did attack the Court’s clerk in a prior posting. However, most of his comments have been directed at Engoron and his alleged hostility toward Trump. Where to draw this line is the subject of this column. In my view, criticism of the case, the court, and the prosecutor should be treated as protected speech.
Here is the column:
In 2016, the Supreme Court issued a unanimous opinion overturning a conviction that the Department of Justice (DOJ) had seemed willing to secure at whatever cost to the rule of law. The case involved the prosecution of former governor Bob McDonnell (R-Va.), and the lead DOJ prosecutor was now-special counsel Jack Smith. The court dismissed the “tawdry tales” offered by the DOJ and declared that it was far more concerned with the damage that Smith was causing to the legal system with his virtually limitless interpretation of criminality.
The rebuke came to mind this week as Smith continued his unrelenting effort to gag former president Donald Trump before the 2024 election. Some of us have previously denounced the gag order issued by U.S. District Judge Tanya S. Chutkan as unconstitutional, but even that order was more limited than what Smith had demanded.
Even the American Civil Liberties Union (ACLU), a leading critic of Trump, has come out against Smith’s efforts as an attack on the First Amendment.
Undeterred, Smith now wants to reinstate and expand the gag on Trump, citing Trump’s comments about his former chief of staff, Mark Meadows, who reportedly has been given an immunity deal by Smith. (Meadows’ lawyer disputes those reports.)
Smith wants to bar Trump from criticizing any witnesses as well as the prosecution and the court. That would include criticisms of former Vice President Mike Pence, currently one of his opponents for the 2024 Republican presidential nomination, on his allegations linked to the earlier election.[Update: after this column ran, Pence withdrew from the presidential campaign]
Of course, gagging Trump will not materially affect the jury pool in the case. The Smith prosecutions are one of the biggest issues in this election. Moreover, it will not protect potential witnesses from withering criticism in the middle of an election that could turn on the public view of these cases.
Indeed, Smith has insisted on trying Trump before the election but now also wants to prevent him from speaking fully about the case before the election. Trump alone would be gagged, even as other politicians and pundits debate the merits of the cases and the countervailing allegations of the weaponization of the criminal justice system.
The prior order issued by Judge Chutkan is shockingly vague and overbroad. It bars Trump from “targeting” Smith or his staff or potential witnesses or the “substance of their testimony.” It leaves an undefined and uncertain line as Trump campaigns on what he (and millions of citizens) view as the abuse of the criminal justice system to target President Biden’s main political opponent.
Smith would add to the scope and ambiguity of the order in his latest motion. He is arguing that the court should “modify the defendant’s conditions of release … by clarifying that the existing condition barring communication with witnesses about the facts of the case includes indirect messages to witnesses made publicly on social media or in speeches.”
Consider that for a moment: Smith would treat comments about witnesses, such as Meadows or Pence, as an effort to communicate with a witness.
Thus, Smith continues to litigate with a sense of utter abandon, showing his signature lack of concern for the implications of his legal arguments. It is the type of blind purpose that leads — as it did in the McDonnell case — to a unanimous ruling against you on an otherwise divided Supreme Court.
Ironically, it calls for a level of self-restraint that the trial court itself failed to show in the past. In sentencing a rioter in 2022, Judge Chutkan said that January 6 defendants “were there in fealty, in loyalty, to one man — not to the Constitution.” She added that it was “a blind loyalty to one person who, by the way, remains free to this day.”
Despite clearly indicating with her comment that she believed Trump should be jailed (long before he was indicted), Chutkan has refused to recuse herself in this trial.
The lack of restraint shown by Smith only magnifies the lack of leadership from Attorney General Merrick Garland. The attorney general has repeatedly said that he would give the special counsel full authority and independence. However, that would not ordinarily mean that the attorney general would reduce himself to a mere pedestrian in this process.
This is an example of the ever-shrinking profile of Garland at the Justice Department. He has often told Congress that his knowledge of controversies is limited to what he has read in press accounts. Even beyond the special counsel’s investigations, he seems as proactive as a ficus plant.
Yet, this new gag motion presents a far more serious cost to Garland’s passive role at the department. Smith is taking a hatchet to the First Amendment in these motions. In doing so, he is fueling anger over the perception of a weaponized criminal justice system.
Smith’s deafening attacks on free speech are matched equally by Garland’s utter silence. The attorney general seems to believe that removing himself entirely from these investigations is more important than guaranteeing that his department does not become the enemy of core constitutional rights.
As Smith seems intent on inviting another unanimous Supreme Court opinion against his department, Garland may want to consider voicing a modicum of concern over the cost to free speech in Smith’s efforts to gag Donald Trump.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.
The ONLY thing Mr. “Smartypants” Trump needs to do to make all of this disappear in the blink of an eye, is to demand to see his WRITTEN guarantee of actually getting a fair trial, especially in a 100% corrupted legal system!! Without that guarantee, then every “trial” is totally fake! And it is either a pure gamble with no known outcome, or, it’s a fraud/ scam being run on the victims of the legal system!!
So, if Trump can’t figure this out all on his own, like I did, he must not be all that smart, right? My IQ isn’t genius level, it’s only 149!
Why isn’t the Texas AG charging the States that are prosecuting Trump with Crimes? I.E. election Interference etc… That case would go straight to the SCOTUS (State VS State) real fast – and shut them all down.
𝐆𝐚𝐫𝐲 𝐒𝐡𝐚𝐩𝐥𝐞𝐲’𝐬 𝐇𝐚𝐧𝐝𝐥𝐞𝐫𝐬 𝐑𝐞𝐯𝐢𝐬𝐢𝐭 𝐏𝐚𝐬𝐭 𝐋𝐞𝐚𝐤 𝐈𝐧𝐯𝐞𝐬𝐭𝐢𝐠𝐚𝐭𝐢𝐨𝐧𝐬 𝐢𝐧𝐭𝐨 𝐂𝐡𝐮𝐜𝐤 𝐆𝐫𝐚𝐬𝐬𝐥𝐞𝐲’𝐬 𝐒𝐭𝐚𝐟𝐟
By: emptywheel ~ October 29, 2023
[LINK:] emptywheel.net/2023/10/29/gary-shapleys-handlers-revisit-past-leak-investigations-into-chuck-grassleys-staff/
𝐅𝐁𝐈 𝐀𝐧𝐝 𝐈𝐭𝐬 𝐅𝐨𝐫𝐞𝐢𝐠𝐧 𝐈𝐧𝐟𝐥𝐮𝐞𝐧𝐜𝐞 𝐓𝐚𝐬𝐤 𝐅𝐨𝐫𝐜𝐞 𝐏𝐮𝐫𝐠𝐞𝐝 𝐒𝐨𝐮𝐫𝐜𝐞𝐬 𝐖𝐡𝐨 𝐖𝐞𝐫𝐞 𝐎𝐧𝐭𝐨 𝐁𝐢𝐝𝐞𝐧 𝐂𝐨𝐫𝐫𝐮𝐩𝐭𝐢𝐨𝐧
The House needs to do more than question the personnel Grassley identified. It must first open a long-overdue impeachment inquiry into FBI Director Christopher Wray.
By: Margot Cleveland ~ October 26, 2023
[LINK:] thefederalist.com/2023/10/26/fbi-and-its-foreign-influence-task-force-purged-sources-who-were-onto-biden-corruption/
𝐃𝐎𝐉 𝐒𝐮𝐛𝐩𝐨𝐞𝐧𝐚𝐞𝐝 𝐏𝐡𝐨𝐧𝐞 𝐀𝐧𝐝 𝐄𝐦𝐚𝐢𝐥 𝐋𝐨𝐠𝐬 𝐎𝐟 𝐇𝐢𝐥𝐥 𝐒𝐭𝐚𝐟𝐟𝐞𝐫𝐬 𝐏𝐫𝐨𝐛𝐢𝐧𝐠 𝐂𝐫𝐨𝐬𝐬𝐟𝐢𝐫𝐞 𝐇𝐮𝐫𝐫𝐢𝐜𝐚𝐧𝐞 𝐌𝐚𝐥𝐟𝐞𝐚𝐬𝐚𝐧𝐜𝐞
The executive branch’s targeting of staffers assisting with congressional oversight represents a dangerous intrusion into the legislative branch’s functioning.
By: Margot Cleveland ~ October 25, 2023
[LINK:] thefederalist.com/2023/10/25/doj-subpoenaed-phone-and-email-logs-of-hill-staffers-probing-crossfire-hurricane-malfeasance/
“Trump may well have some degree of blame for the Hamas attack.”
Anyone have helpful tips on how to deal with those who are delusional?
Ask Israel. See my response infra.
I had a favorable view of Merrick Garland before he got AG job, most did, but he has tarnished his good name getting mixed up with the corrupt Biden family. In his capacity as AG he decided to cover up the Biden family corruption and also look the other way when the FBI goes after conservatives. He also has no problem with censorship, and he also has no problem with people demonstrating at Judges homes in anticipation of a ruling. What are Garlands core values? He appears to have none.
If you bothered reading Chutkan’s gag order, you’d find that it gags the prosecution too.
This was a reply to Edwardmahl’s 4:43 PM comment.
Since the DOJ operates by leaks, there is no way to “gag” it. How many government leakers have been outed? When the Watergate Committee was operating, leaks damaging to Nixon were common. Sam Dash could never find the leakers. Then someone made a leak critical of Sam Dash, and the leaker was discovered immediately. It was a two-tiered justice system even then.
You’re showing me again that you still haven’t read the order, which does not gag the DOJ as an organization, but does gag the specific people working for the DOJ on the prosecution team. They can be — and are — gagged by the order, and they can be punished if they violate it.
And if an anonymous anti-Trump leak appears in the NYT, how well the judge determine where it came from, even if she wanted to?
And if an anonymous pro-Trump leak appears in the NY Post, how will the judge determine where it came from, even if she wanted to?
Chutkan has no power to impose a penalty and deny constitutional rights and freedoms before the accused is convicted.
Both parties in a criminal trial — prosecution and defense — have a right to a fair trial. The prosecutor represents the public.
The prosecution is not on trial. The prosection cannot be gagged or hindered in its presentation of its case. Smith wants to gag and hinder Trump because, unlike the other J6
Defendants, he has the resources and disposition to fight. This fight may be the definitive event of the early 21st century. It is Trump vs the Police State.
I thought nothing could ever make me consider voting for Trump. But with the all-out lawfare waged against him, and the Zionist apologies for genocide from Kennedy, that is certainly no longer true.
Have you considered that he’s been charged with crimes because he’s guilty of those crimes?
Actually, penis breath, I have considered that. What does it have to do with the gag order?
Penis breath….ha ha ha….good one
I doubt anything will come from saying it, but thank God we can still say it at all. At this point, many Western countries can’t unless it is just in theory. Thank you team Turley, for what you do every single day. Our first amendment is everything, and we are in a period again where we are the only ones.
Hmm… maybe protected crackpot speech . Is it speech or taunting ? Does it make legal difference ?
I’m all for free speech until it – the speech – is causing violence .
Trump continues to show his lack of diplomacy (or even common sense ) in attacking the judge , court in the way he does – it may be his “right” but it stupid.
Gosh he’s such a putz
The reality is if anyone but Trump was saying what Trump has said, they would be in jail. See what happens when anyone but Trump decides to disobey a judges order. All the whining, complaining, grievance and victimization by the Trump cult that Trump is being denied his 1st amendment, then some of you say you are lawyers, please advise your clients to run their mouths after a order, see what happens.
Fishy, 56% of young liberal white women have been diagnosed with a mental disorder, according to a Pew study.
Are you one of them?
Fishy, you’re so full of fish I can’t believe you would make it so public. You embarrass yourself. Never has a former President been prosecuted “criminally” by a current president and future presidential opponent (the closest example is when “Crazy Abe” threw his opponents in prison during his high-criminal, illegal, and unconstitutional suspension of habeas corpus – talking about presidential crimes, that was “Crazy Abe” all day long!). Pick a number – 75% of what presidents do is criminal and illegal in one way or another. You communists (liberals, progressives, socialists, democrats, RINOs, AINOs) have established a precedent for which you are currently unaware of the ramifications. You fool no one but your idiotic self. It’s like abortion. The communists (liberals, progressives, socialists, democrats, RINOs, AINOs) had abortion disguised as a federal or constitutional right. Bullshoot. It never was and never will be, and that’s why the Supreme Court of 2022 threw out the fraudulent and false decision by the abjectly corrupt communist (liberal, progressive, socialist, democrat, RINO, AINO) Supreme Court of 1973. The Justices of that court must have been impeached, convicted, and Drawn and Quartered. Disgusting!
1st Amendment
Congress shall make no law…abridging the freedom of speech…
The freedom of speech shall not be abridged by any individual, person, officer, judge, organization, or entity, not even unconstitutional, anti-Constitution, anti-American, communists (liberals, progressives, socialists, democrats, RINOs, AINOs) like Fishy.
Post conviction criminal penalties may take various forms, with the exception of those that are cruel and unusual, and include fines, abridgement of speech, imprisonment, forfeiture of life, et al.
George: you want to talk about “never befores” when it comes to US Presidents? Where to start? Here’s a partial list:
-cheating to get into office by colluding with a hostile foreign government to spread lies about your opponent
-bragging about getting away with grabbing womens’ genitals
-consorting with porn actress and nude models.
-lying 30,000 + times.
-falsifying campaign finance reports by reporting a payoff to a porn actress as legitimate campaign finance expense
-calling migrants seeking asylum “animals, vermin, murderers and rapists”
-telling the Proud Boys to “stand down and stand by”
-saying that neo-Nazis were “fine people” after they killed a protester
-siding with a murderous dictator over US intelligence, and praising that dictator’s invasion of Ukraine as “genius”
-praises other dictators, whom he would try to emulate
-lying about losing an election, including false claims of rigged voting equipment, fake ballots, dishonest vote counting, votes being switched, all with NO evidence
-fomenting an insurrection by telling fans to “fight like hell or you’re not going to have a country any more”
-trying to bully Secretaries of State to “find” just enough votes to overturn the vote count and threatening criminal prosecution if he refused
-trying to bully the VP into refusing certified vote counts based on nothing but massive ego
-deliberately stealing classified documents and disclosing the contents to unauthorized persons
-disclosing classified information on capacities of our submarines and strengths and weaknesses of plans to invade Iran plus other classified information
-lying about declassifying and returning stolen classified documents;
-faking net worth by lying about values of assets, to induce banks to loan money on more-favorable terms
-getting fake electors to falsify Electoral College documents, which is a felony.
Our current president is NOT prosecuting Donald Trump–the State of Georgia, the State of New York and the Attorney General are. There is not any evidence that Joe Biden has been anything other than hands-off. In fact, Turley is suggesting that the AG Garland “rein in” the Special Prosecutor–meaning he should get involved in Smith’s prosecutorial discretion–but ONLY to benefit Trump. He won’t do it, nor should he. Now, Trump claims that he should be entitled to say whatever he wants about anyone he wants–witnesses, judges, court staff–without limit, including all sorts of false accusations of political motivation. Anyone attempting to prevent him from slandering people is somehow interfering with an election. Trump hasn’t even been chosen as a candidate yet. NO ONE would have been allowed to get away with what he’s gotten away with so far–NO ONE.
Gigi, the willful ignorance of the Trump cult will go down in history as a textbook example of how propagandists work. And sociopathy marketed as political ideology.
Fishy – the psychological term for everything you say is called P R O J E C T I O N.
President Joe Biden has been brazenly LYING about everything for years.
Why has he gotten away with it?
Why is Hunter not in prison?
Why?
“ falsifying campaign finance reports by reporting a payoff to a porn actress as legitimate campaign finance expense”
Here we have a perfect example of GIGI the LIAR, making another daily FALSE claim.
The allegation was that the payment to Daniels was NOT DISCLOSED as an in kind campaign contribution. LIAR
We can argue about whether your TDS justifies the spurious allegation of FAILURE TO REPORT, but Cohen did plead out in the charge. However, you once again misconstrue or misstate the facts.
LIAR
In other words, it was the FEC that said it was a campaign expense, you idiot, not Trump.
LIAR
According to NPR, April 4, 2023:
“Former President Donald Trump was charged in an indictment unsealed Tuesday with 34 felony counts of falsification of business records in the first degree.
He pleaded not guilty to all the charges.
The criminal charges — a historic first against a sitting or former president — are the culmination of an investigation into hush-money payments that Trump paid prior to the 2016 election to adult-film actress Stormy Daniels to cover up an alleged affair.
Trump and his allies have called the charges politically motivated.
The charges were made public days after a Manhattan grand jury indicted Trump.”
This tranch of trials is following the familiar pattern of modern “justice”. The absolutely obvious bias of the judges and prosecutors is allowed to play out to the end, wreaking its intended damage on the 2024 election. Then predictably, after the election of course, future appeals courts and supreme courts will belatedly rule against all the unconstitutionality, as if that undoes any of the harm done.
This is of a piece with the Jan6 defendants, who suffered months-long, even years-long, pretrial “detention”; threats of felony charges and long imprisonment as extortion to win guilty pleas for small misdemeanors; hugely disproportionate prison terms imposed by deeply biased judges for infractions amounting to nothing at all. Now it is finally coming out that the demonstrators and Capitol Police were set up by certain bad actors in leadership positions to make jan 6 as violent as possible, for political gain. But this blatant corruption of the judicial system will never be brought to account.
Which is of a piece with the courts’ actions in the 2020 election. Every attempt to bring the preparations for election dishonesty and corruption into the courts to nip it in the bud was thwarted by the judges on procedural grounds. Then after the election, every attempt to bring the actual dishonesty and corruption in the election into the courts for redress was thwarted by the judges on procedural grounds. Now years later courts are grudgingly ruling that yes, much of what was done was against the law; but of course it’s too late to do anything about it.
Which is of a piece with the 2016 coup orchestrated by the outgoing Obama two weeks before Trump’s inauguration, bringing the DOJ, FBI, CIA and others into a conspiracy of lies and corruption to bring down the incoming president. It has taken years to finally learn about and prove all the actors involved and what they did. But not a single major conspirator has ever been convicted. Only two minor players, to my recollection, were even indicted on minor charges, but enjoyed acquittal from Democrat judges and juries. We witnessed a four year long coup undermining a siting president, and despite clear evidence of their crimes, our system of “justice” can barely eek out a couple of minor indictments and no convictions.
Turley only ever discusses the small details of this or that instance of judical wrongdoing. He never addresses the elephant in the room–The whole system is biased, weaponized, and politicized.