Former U.S. President and Republican candidate Donald Trump makes a keynote speech at a Republican fundraising dinner in Columbia, South Carolina, U.S. August 5, 2023.
Sam Wolfe | Reuters
As Donald Trump cranks up his attacks on a growing list of targets linked to his quite a few legal battles, experts predict the previous president could soon be strapped with a court-ordered muzzle.
However it’s an open query, they are saying, whether a gag order may very well be enforced against Trump, now a top White House contender with a reflexive social media habit and a campaign message built around his self-proclaimed political persecution.
“I feel a gag order is probably going, I’m just undecided if it is going to be enforced,” former federal prosecutor Neama Rahmani told CNBC.
“Lots of the judges that I’ve seen cover some of these political cases, they have been all bark, no bite,” he said.
A lawyer for Trump didn’t immediately reply to a request for comment.
Gag orders
Gag orders are often only imposed when the fairness of a trial is seen to be in danger, legal experts said. The judge can have to weigh First Amendment concerns against the necessity to forestall attempts to tamper with witnesses or taint the jury pool.
“Ultimately, the burden is on the prosecution to present facts to the judge to point out that such orders are vital in these circumstances,” said Norm Eisen, legal and ethics expert and executive chair of the States United Democracy Center, in a press release to CNBC.
A trial jury is presupposed to weigh only the evidence that they’ve heard or seen within the courtroom. But Trump’s frequent pronouncements about his cases — probably the most closely watched proceedings within the country — could mark an try and influence the case, said Matthew Galluzzo, a former Recent York prosecutor.
“You do not normally see any person so blatantly attempting to mainly break the principles of trial,” Galluzzo said.
The more Trump sounds off on his cases, the more likely a gag order becomes, said Joshua Ritter, a criminal defense attorney in Los Angeles.
But when such an order comes, it is going to be “probably more limited than most,” Ritter said, since the judge can have to rigorously balance the necessity to protect the integrity of the trial with Trump’s right to make political speech.
“It becomes somewhat more tricky,” Ritter said, noting that a “large part” of Trump’s campaign message is that he’s “being persecuted.”
Indeed, Trump’s political operation has heavily featured the indictments in its fundraising pitches and in other campaign messages. A latest ad launched over the weekend attacked special counsel Jack Smith and other prosecutors who’ve brought cases against Trump.
That ad focused largely on Fulton County District Attorney Fani Willis, who is predicted to soon seek indictments in her state-level probe of possible interference in Georgia’s 2020 election by Trump and his allies.
Trump has already been limited from posting about some evidence from the Manhattan DA Alvin Bragg’s hush money case on social media. However the DA’s office had stressed that it was not looking for a gag order against Trump, noting he “has a constitutional right to talk publicly about this case.”
If Trump is barred from speaking about parts of one among his federal cases but defies the order, it could put a judge in an unprecedented situation of getting to punish a number one presidential candidate.
U.S. District Judge Tanya Chutkan is assigned to Trump’s latest federal case.
“Does Chutkan have the fortitude to either sanction or jail Donald Trump?” Rahmani said. “Possibly, but you have got to be willing to implement that gag order.”
Protective order
Smith, the federal prosecutor in two of the ex-president’s pending criminal cases, has already submitted a court filing pointing to the social media tirades as a cause for concern.
Smith’s filing Friday evening singled out one among Trump’s posts from Friday afternoon, which declared, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
Smith seeks a protective order that may bar Trump from improperly sharing sensitive evidence within the federal case charging him with attempting to overturn his 2020 election loss.
“If the defendant were to start issuing public posts using details — or, for instance, grand jury transcripts — obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice on this case,” Smith wrote.
In response, a Trump campaign spokesperson said that the post referenced in Smith’s filing “is the definition of political speech.” The spokesperson claimed that Trump’s post was not geared toward his legal foes, but relatively at “the RINO, China-loving, dishonest special interest groups and Super PACs, just like the ones funded by the Koch brothers and the Club for No Growth.” RINO stands of Republicans in Name Only.
In a filing Monday evening, Trump’s attorneys argued that the Department of Justice’s proposed protective order was too broad. The defense attorneys proposed a narrower order that they said would shield “only genuinely sensitive materials from public view.”
Trump “doesn’t contest the federal government’s claimed interest in restricting a few of the documents it must produce,” they wrote. “Nevertheless, the necessity to protect that information doesn’t require a blanket gag order over all documents produced by the federal government.”
In a social media post earlier Monday, Trump claimed that a protective order within the case “would impinge upon my right to FREE SPEECH.” In the identical post, Trump said that Smith and the DOJ must be sure by such an order, claiming they’re “leaking” information.
Trump has already pleaded not guilty in two other criminal cases. Smith’s office brought charges in Miami federal court stemming from the previous president’s retention of classified documents after leaving office in 2021. Manhattan prosecutors, meanwhile, have filed charges of falsifying business records related to hush money payments made to women who say they’d extramarital affairs with Trump.
Trump’s blitz
Since pleading not guilty to criminal charges last Thursday — his third indictment of the 12 months, and arguably probably the most serious — Trump launched right into a multiday blitz, venting rage on the prosecutors, the potential witnesses and even the judge overseeing his most up-to-date case.
“THERE IS NO WAY I CAN GET A FAIR TRIAL WITH THE JUDGE ‘ASSIGNED’ TO THE RIDICULOUS FREEDOM OF SPEECH/FAIR ELECTIONS CASE,” Trump wrote in one among three all-caps posts Sunday morning on Truth Social.
“EVERYBODY KNOWS THIS, AND SO DOES SHE!” he wrote.
Trump has said he’ll seek a latest judge and a latest venue for the federal case in Washington, D.C., where he’s accused of conspiring to overturn his loss within the 2020 presidential election.
Chutkan, the judge assigned to the case, is an appointee of former President Barack Obama who has delivered tough sentences to defendants convicted in cases related to the Jan. 6 Capitol riot.
Trump’s criticism of Chutkan got here a day after he attacked Mike Pence, his former vp and a key figure within the indictment who’s being eyed as a possible trial witness.
The indictment alleges that after Pence protested the dubious legal theory that he could help Trump’s election efforts by refusing to count certain electoral votes, Trump called him “too honest.” Pence’s presidential campaign has began selling merch touting that quote.
Trump on Saturday denied calling Pence “too honest” and accused his former veep of going to “the Dark Side.”
“He’s delusional, and now he wants to point out he’s a tricky guy,” Trump wrote on Truth Social.
Pence in a CBS News interview Sunday did not rule out the potential of offering witness testimony at Trump’s eventual trial.
Trump has also continued to rail against Smith, together with President Joe Biden himself.
The previous president has asserted that the federal government is engaged in a conspiracy to squelch his 2024 presidential campaign by forcing him to spend money and time on his mounting legal troubles.
“THIS IS ALL ABOUT ELECTION INTERFERENCE!” Trump wrote Monday afternoon, essentially accusing his opponents of the very crimes he has been charged with.
Trump has called for the U.S. Supreme Court to “intercede” against the Biden administration. There isn’t any evidence of Biden’s involvement in Trump’s criminal prosecutions.
