A federal judge in Washington said Monday she would restrict former President Donald Trump’s statements in the federal case alleging he attempted to overturn his loss in the 2020 election, hampering his effort to meld his criminal defense with his reelection bid.
The order from Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia comes after months of Trump’s attacks on Special Counsel John L. “Jack” Smith and potential witnesses on charges including conspiracy to obstruct an official proceeding and conspiracy to defraud the United States.
But Trump already has sought to cast the order as an attempt to “silence” him, a criticism Chutkan addressed in a statement from the bench Monday.
Chutkan said that no other criminal defendant would be allowed to “call a prosecutor deranged, or a thug, and I will not permit it here simply because he is running a political campaign.”
Trump has free speech rights, Chutkan said, but they don’t extend to trying the case in the public. She said she would enter an order that restricts Trump’s statements about Smith and potential witnesses in the case such as former Vice President Mike Pence.
“Those critical First Amendment freedoms do not allow him to launch a pretrial smear campaign against government staff, their families and pretrial witnesses,” Chutkan said.
The order could carry hefty penalties, including civil fines, sanctions or even moving the trial currently scheduled for March. Chutkan acknowledged that enforcing the order, which could normally include prison time for violations, could be complicated by “realities we have to face” because of Trump’s status as a former president.
Chutkan noted she has already treated Trump differently than other defendants, such as waiving his requirement to appear at Monday’s hearing so he could campaign in Iowa.
Prosecutors sought the gag order last month, citing multiple statements by Trump. They pointed to his attacks on prosecutors, potential witnesses in the case and Chutkan herself, as well as the possibility of a fair trial for Trump in DC.
Prosecutor Molly Gaston said during Monday’s hearing that Trump was aware his statements may cause his supporters to intimidate witnesses, and he has sought to use his platform to influence witnesses and potential jurors.
“He is using his campaign as a platform to make these statements with the intention of trying this case in the court of public opinion rather than in this court,” Gaston said.
The government pointed to Trump’s statements against potential witnesses, such as one that said Gen. Mark Milley, the former chairman of the Joint Chiefs of Staff, may have committed treason by communicating with Chinese officials while in office.
“This is an act so egregious that, in times gone by, the punishment would have been DEATH!” Trump posted on Truth Social.
Since the government sought the gag order, Trump has incorporated it into his broader political campaign against the Biden administration. That effort included posts on Truth Social over the weekend that referred to the “Leaking, Crooked and Deranged” Smith, claimed Chutkan should recuse herself, and called the case against him election interference.
“They want to take away my First Amendment rights, and my ability to both campaign and defend myself. In other words, they want to cheat and interfere in the 2024 Presidential Election,” Trump posted.
Trump also posted that the cases against him constituted “election interference” on Truth Social and sent out a fundraising email decrying the effort to “FORCIBLY SILENCE” him.
“Today really isn’t about gagging me…It’s an attempt to gag the American people,” the email said.
Trump attorney Todd Lauro used similar rhetoric Monday, telling the judge that Trump was speaking up against a society “teetering toward tyranny” and calling out a political prosecution. Lauro called any order “unprecedented” in a presidential campaign and “impossible” to enforce over the course of the at-times argumentative two-hour hearing.
“We’re in the middle of a campaign and dealing with prior restraint on political speech,” Lauro said. “The Biden administration is seeking to censor a political candidate in the middle of a campaign.”
Chutkan admonished Lauro several times about the language he used in court, including referring to the proposed order as “censorship” and saying that the trial, scheduled for March, should be delayed until after the election.
“Obviously you have an audience other than me in mind,” Chutkan said.
Chutkan at times laughed off Lauro’s defenses of Trump’s public statements but also struggled with how to fashion an order that would work to restrict Trump and be enforceable.
Lauro argued Trump has not intimidated any witnesses or violated the court’s orders governing his release. “What you have in place is working,” Lauro said.
Chutkan laughed in response. “I’m going to have to take issue with that,” she said.
Chutkan spent about an hour of the hearing asking Lauro to defend Trump’s prior statements about known witnesses in the case, including Pence, Milley and former Attorney General William Barr.
She also said she was “deeply disturbed” by a post Trump made about a court clerk in another case that included the clerk’s photo.
In that New York state civil fraud trial, the judge entered an order restricting Trump’s statements about court staff after Trump posted about the clerk on Truth Social with false information about her and Senate Majority Leader Charles E. Schumer, D-N.Y.
At several points, Chutkan said Trump’s statements reminded her of 12th Century English King Henry II’s statements — “won’t someone rid me of this meddlesome priest?” — that ultimately prompted the murder of cleric Thomas Becket.
Chutkan said “it is not a far stretch” to imagine that Trump could prompt violence from his supporters by calling members of Smith’s team “thugs.”
Trump’s fight against the prosecution has also enlisted his congressional allies, one of whom, Rep. Marjorie Taylor Greene, R-Ga., sat in the audience Monday. During the hearing she also posted on Truth Social that the gag order was “UnConstitutional and unAmerican!,” a post amplified by Trump.