The Justice Department (DOJ) has asked Judge Tanya Chutkan to reinstate her gag order on former President Donald Trump, arguing that it doesn’t violate his constitutional right to free speech.
Judge Chutkan issued a stay on Oct. 20 pending review. The initial order prompted criticism from many, including the American Civil Liberties Union (ACLU), for placing overbroad restrictions on President Trump’s speech. Both the ACLU and President Trump’s attorneys argued that the order, which states that President Trump isn’t allowed to “target” people involved in the case, was also unconstitutionally vague.
DOJ attorney Molly Gaston, who is part of special counsel Jack Smith’s team, disputed both of these points in her Oct. 25 response and echoed Judge Chutkan in asserting that criminal defendants don’t enjoy unrestricted First Amendment rights.
“The Court has issued a narrow order ... that strikes a careful balance between the First Amendment rights of the defendant and the need to safeguard the integrity of the proceedings, including by protecting certain trial participants from intimidation, harassment, and threats,” Ms. Gaston wrote.
“These narrow restrictions were needed, the Court found, because the defendant has a demonstrated history of using inflammatory language to target certain individuals in a way that ‘pose[s] a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment.’”
President Trump’s attorneys John Lauro and Todd Blanche had argued in their Oct. 20 motion that prosecutors hadn’t proven that President Trump’s statements made witnesses feel threatened or harassed.
“A prior restraint cannot be based on speculation,” Mr. Lauro and Mr. Blanche wrote. “Rather, the prosecution must demonstrate a ‘clear and present danger’ to a compelling government interest.”
Ms. Gaston, however, maintained that waiting for harassment or violence to occur was an “ineffectual approach” not required by the First Amendment.
“To the contrary, the Court has both the authority and the duty to prevent trial participants, including the defendant, from engaging in extrajudicial speech that poses a substantial likelihood of material prejudice,” she said.
Ms. Gaston also highlighted President Trump’s Oct. 24 TruthSocial post in which he suggested his former chief of staff, Mark Meadows, would be a “coward” if he took a deal with prosecutors.
ABC News reported that Mr. Smith granted Mr. Meadows immunity in exchange for his agreeing to testify under oath. According to CBS News, Mr. Meadows’s attorney said he told ABC its report “was largely inaccurate.”
“People will have to judge for themselves the decision to run it anyway,” he reportedly said.
Regardless, President Trump’s statements and the Biden administration’s response have sparked a fierce debate about free speech. President Trump’s case is highly unusual in that his speech is being limited in a prosecution brought by his likely opponent in the upcoming presidential election.
“If our freedom of speech is to mean anything, the court cannot allow the prosecution to silence the leading presidential candidate whose speech and message are politically threatening to the incumbent president,” President Trump’s attorneys said in their Oct. 20 motion to stay Judge Chutkan’s order.
Ms. Gaston argued in her Oct. 25 response that President Trump’s attorneys had distorted the case law on this issue and that the former president could continue commenting on both President Joe Biden and the case in certain ways.
She pointed to Judge Chutkan’s clarification that the order “shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President [Mike] Pence.”
Judge Chutkan has set an Oct. 28 deadline for President Trump’s team to respond to the DOJ’s filing.
