Judge agrees to ‘narrow’ gag order limiting Trump attacks on witnesses in Jan. 6 case

A federal judge said Monday that she would impose a gag order barring former President Trump from attacking future witnesses in his election interference case, as well as prosecutors, court staff and their families.

Judge Tanya Chutkan said Trump’s status as a candidate did not give him carte blanche to level a “smear campaign” against those involved in the case, saying that “First amendment protections yield to the administration of justice and to the protection of witnesses.”

She declined however, to grant an order with the breadth requested by the Justice Department in September, declining to limit any speech attacking her or the District of Columbia, saying the court would use the jury selection process to ensure it does not pick jurors swayed by Trump’s repeated attacks on the city.

The extent of Chutkan’s order was not entirely clear, saying she would describe only the “contours” of her decision Monday, while drafting a formal ruling later.

Still, she clarified the “narrow” order would not stop Trump from attacking President Biden or claiming over the course of his campaign that the prosecution is politically motivated — an assertion the Justice Department again denied during the hearing.

“This is not about whether I like the language Mr. Trump uses,” Chutkan said. “This is about language that dangers the administration of justice.”

The decision came after a request by the Justice Department to limit attacks that included disparaging, inflammatory and intimidating remarks about the case.

It’s something prosecutors said was needed to block Trump from using his reach as a former president to influence the case, while Trump’s team said it was overly broad and would chart new ground in impinging on the free speech rights of a presidential candidate.

Chutkan said her ruling reflected the realities of being a criminal defendant — at one point noting Trump’s four different criminal cases — and saying release conditions allow for restrictions on speech and that “Trump does not have the right to say and do exactly as he pleases.”

During the more than two-hour hearing, Chutkan in particular took issue with Trump’s statements calling special counsel Jack Smith a deranged thug.

“I cannot imagine any other criminal case where a defendant is allowed to call a prosecutor deranged or a thug,” she said.

“I will not permit it here simply because the defendant is running a political campaign,” Chutkan added.

Trump was charged with four criminal counts in August stemming from his efforts to overturn the 2020 election. He pleaded not guilty, as he did in his three other indictments, portraying them all as a political witch hunt.

And while Trump dismissed Churtkan’s order as “an absolute abomination and another partisan knife stuck in the heart of our Democracy,” he steered clear of regular attacks against Smith and other language that would violate the order.

It was a swift decision on a thorny issue that Trump pledged to appeal, one that came after a shift in the tone of the hearing.

Chutkan repeatedly chastised Trump’s attorney, John Lauro, accusing him at turns of repeating Trump’s rhetoric from the campaign trail while failing to answer direct questions about legal arguments.

“I do not need to hear any campaign rhetoric in my court,” Chutkan said, adding that “politics stops at this courthouse door.”

At another point, Chutkan told Lauro, “obviously you have an audience other than me in mind.”

Lauro repeatedly suggested during the hearing that the only way to avoid the sticky issues presented was to bump the case and hold the trial after the election.

“This trial will not yield to the election cycle, and we’re not revisiting the trial date,” Chutkan said.

The trial is slated to begin March 4, one day before Super Tuesday.

Chutkan opened the hearing noting that Trump had lobbed insults at her and the prosecutors on the case just the night before. He also made a high profile attack on a court staffer in New York shortly after the Justice Department first made the request — a comment that led to a gag order in that civil trial.

Chutkan said she was “less concerned about shielding myself” but that the statements pose “tremendous risk” to court staff who are just doing their jobs. 

She said that without clear guidance from the court, Trump would continue to make similar remarks.

“I’m not confident that without some kind of restriction, we won’t be in here all the time,” Chutkan said.

Lauro, Trump’s attorney, said all of the speech issues in his cases are “inextricably intertwined” with the campaign given the timing of the prosecution.

“Mr. Trump is allowed to say things like this is a politically motivated prosecution. He is entitled to say things he is being treated unfairly. He is allowed to speak truth to oppression,” Lauro said.

Chutkan at various turns asked Lauro about Trump’s attacks on Smith’s wife, as well as various different witnesses, warning that they could spur violence.

But Lauro dismissed those concerns, noting that the First Amendment shields speakers from being held liable for the actions of others but also said it was obvious such comments were not threats.

“I disagree, I don’t think it’s obvious,” Chutkan responded. 

That was a central line of the prosecutor’s arguments. 

“He knows and understands the effects of these statements. It is that they are amplified; it is that they motivate people to threaten others. And it not only prejudices the jury pool… but in the case of witnesses it threatens and chills witnesses too,” DOJ prosecutor Molly Gaston said during the hearing.

Prosecutors also focused on Trump’s strategy of “trying this case in the media,” saying his comments could undermine how a future jury perceives the case and the integrity of those involved in the proceedings.

“It’s not because we’re trying to defend the special counsel’s office or the court — it’s because a juror will come to jury selection and not be able to follow the court’s instruction,” Gaston said.

“We can’t just allow the jury pool to be prejudiced and then try to confront it on the back end.” 

Though Chutkan did issue the gag order, she narrowed its scope after raising concerns about the breadth of prosecutors’ proposal. 

Chutkan highlighted several carve outs to her order, in particular noting that one potential witness is former Vice President Pence, now a campaign contender in the 2024 primary.

Chutkan said though her order will ban Trump from attacking Pence when it concerns facts underlying the case, the order won’t ban Trump from otherwise chastising his former running mate.

“If Mr. Trump wants to criticize his political rival, Mr. Pence, he may do so,” Chutkan said. 

Chutkan also rejected prosecutors’ ask to limit attacks on Washington, D.C. — which Trump has called a “filthy and crime-ridden embarrassment.”

Gaston said Trump’s attacks on the city were two-fold: an effort to drum up resistance in the D.C. jury pool to back an eventual argument he has floated that the case should be tried in another city. But Chutkan said those issues would be addressed either during jury selection or evaluated when Trump moves to change the venue of the case.

Shortly ahead of Chutkan’s decision, Lauro sought to highlight the high stakes involved with such an order.

“Is your honor going to put President Trump in jail until after the election?” Lauro said.

“Look what they’ve opened here, it’s a massive can of worms.”

Updated at 6 p.m.