Gag Me With An Order

Illustration: Rebecca Zisser/Axios

Today we return to Jack Smith’s federal D.C. case against Trump, where prosecutors have filed a motion for a gag order to keep the defendant from attacking witnesses and court officials and to prevent further tainting of the jury pool. Trump’s attorneys filed their response last night.

Let me start by saying that while I expected Trump to repeat lies and misinformation in public, I did not expect his lawyers to carry them into a federal courtroom. It’s really quite startling to see. It’s also quite unnerving that they attempt to shield his statements behind a claim of “free speech” and boldly claim that there is no evidence of any causal connection between his public attacks and the rise in threats against court officials and witnesses. The record is full of such cause and effect.

For all its bluster, Trump’s response fails to respond to a basic question of how the court really ought to protect witnesses, officials and the jury pool against Trump’s public attacks. But stepping back a few paces, the question of how to gag Trump also raises an issue I’ve written about before: How do we hold stochastic terrorists like Trump accountable for their speech?

What Jack Smith is asking for, and what Trump is claiming

In his motion for a protective order to restrain Trump’s public statements in a narrowly tailored fashion, as the Washington Post summarized, Smith seeks to limit Trump’s speech in three key respects:

Attacking participants in the case; 

Discussing potential witnesses’ testimony or credibility beyond inside the court or in filings; and

Surveying potential jurors without prior court approval.

Trump’s lawyers’ response, as Kyle Cheney of Politico noted, is “largely a political broadside against Joe Biden — but they also contend the proposal is too sweeping and restricts Trump’s protected speech.” The defense argues that “there’s no evidence Trump is actually intimidating witnesses or calling for illegal actions against anyone in a way that could cause imminent threats.” The proposed gag order, they argue, would operate to bar Trump from criticizing adversaries on the campaign trail. Further, they contend, Trump can’t be responsible for how “third parties” respond to his social media posts and campaign statements.

Let’s take these apart one by one.

The political broadside

The defense’s first line of attack isn’t to convince the judge but rather to rile up Trump’s partisan supporters. The defense writes,

[T]he Biden Administration charged President Trump—the leading contender in the 2024 Presidential Election—for statements he made as president. Now, keenly aware that it is losing that race for 2024, the prosecution seeks to unconstitutionally silence President Trump’s (but not President Biden’s) political speech on pain of contempt.

Of course, as an initial matter, Trump isn’t charged because of “statements” he made while president, but for his actions as part of three conspiracies to overturn the election and defraud the United States. 

And it is manifestly not the case that the “Biden Administration” charged Trump, but rather Special Counsel Jack Smith. Attorney General Merrick Garland named Smith to the position in order to put a wall between the White House and the prosecution of someone who had recently announced his candidacy for president. 

To understand the absurdity of the argument that Smith is the same as “The Biden Administration,” there is currently a special counsel named Robert Hur, also appointed by Garland. Hur is charged with investigating whether Biden committed any crimes related to his retention of classified documents, even if done inadvertently, in his residence while he was the vice president. 

So is this the “Biden Administration” currently investigating its own leader, Joe Biden? Would Biden then give the order to indict himself? Would the right tie itself in semantic knots and conclude that Hur by definition cannot have independence because he is “part” of the Biden Administration? (Narrator: When Hur later determines independently not to bring charges, this is exactly what they will say.)

Note what the defense also insinuates. Trump’s lawyers claim, without evidence, that the reason the prosecution wishes to “silence” Trump is not because he poses a threat due to veiled threats in his public statements, but because Biden is “losing” the 2024 election. (Narrator, interrupting again: Biden is not losing the election, and if matched against Trump once more, he likely will go on to win the 2024 election by at least the same electoral count as in 2020.)

No evidence of actually intimidating witnesses?

Trump washes his hands of any culpability when it comes to his own dangerous words. He claims that tweeting out that Mike Pence is a “coward” who failed his country—during the middle of an attack upon the Capitol where Pence was presiding in the Senate—was not meant to place Pence in any danger. But sure, if they want to hang him, maybe he deserved it, as he later allegedly claimed.

Trump also will blithely claim that when unstable and dangerous elements within his own base take up arms, it isn’t because he summoned them all to Washington, told them it would be a “wild” day, and instructed them to fight for their country and march on the Capitol. That had nothing to do with him.

In this proceeding alone, his attacks upon Judge Chutkan have already led to a racist death threat left as a voicemail in her chambers. Special Counsel Smith has to have protective security around him at all times. And contrary to his argument in the filing, Trump has directly attacked important witnesses.

Let’s look at just one clear example.

Over the weekend, as The Atlantic reported, Trump posted on “Truth Social” that his Chairman of the Joint Chiefs of Staff, Gen. Mark Milley, was a traitor and deserved to be executed. According to Trump, Milley’s phone call to reassure China that war with the U.S. was not imminent in the aftermath of the storming of the Capitol on January 6, 2021, was “an act so egregious that, in times gone by, the punishment would have been DEATH.” This kind of threat has become so commonplace with Trump that it barely made the news cycle, and most Americans didn’t hear about it.

But within the context of the court case, this personal attack should be considered significant. Milley will be a key witness against Trump in three of his four cases. As summarized in the Military Times, Milley was present during critical moments and decisions around January 6, including the fact that Trump did not call in the military, and that it was Mike Pence who had to act to attempt to secure the Capitol. Milley pushed back on then-Chief of Staff Mark Meadows’s attempts to shape the “political” narrative that Trump was still in charge and making the calls that day. And Milley had several calls with people close to Trump that day, ultimately telling the January 6 Committee that he believed the president was in a “dark place” and that Milley was worried that he might take action to put the country at risk.

Given even this one example, the claim that Trump is not intimidating key witnesses through his posts, including calling for their death, simply doesn’t hold much water.

The order would muzzle Trump on the campaign trail?

Trump wants to be able to respond to political adversaries such as his former vice president, Mike Pence, who claimed to supporters that Trump, through his actions around January 6 and his demand that Pence subvert the electoral count, had put himself above the Constitution.

I’ll grant that there is a bit of conundrum. The Capitol attack on January 6 and Trump’s overall authoritarian goals, including holding on to power at all costs, will continue to be front and center in the presidential campaign. His rivals, including Pence, will be able to talk freely about this issue, but if there is a gag order, Trump must tread more carefully.

That is what a limitation on speech means.

But Smith is requesting that Judge Chutkan limit only what Trump says about the testimony or credibility of witnesses outside of the courtroom or official filings and that he not attack them. This doesn’t mean he can’t campaign against Pence, or criticize his record and his policies. His speech would be limited only when it comes to Pence’s actual testimony and whether he is a credible witness.

That sure sounds like it is “narrowly tailored” to permit Trump significant leeway on the campaign trail while not poisoning the jury pool against Pence or otherwise intimidating him. If defense counsel has an alternative approach, we haven’t heard it yet.

The problem of course, one that Trump’s lawyers must understand well by now, is that Trump can’t help himself. He has never been able to follow any rules or guidelines. That he may have to obey the orders of a Black, female judge would be almost unbearable to him. That’s why the defense is arguing against any kind of restriction, knowing that whatever line gets drawn will inevitably be crossed.

Trump can’t be responsible for what “third parties” do?

That last part is the “stochastic terrorist” argument, made famous by the line spoken by Henry II of England, “Will no one rid me of this troublesome priest?”—before the Archbishop of Canterbury was slain by four men who allegedly “misunderstood” the question as an order.

In our laws, there is admittedly a wide, protective circle around free speech, which broadly protects it and only tends to criminalize it when there is an immediacy to the inciting speech and a real threat of violence, injury or harm. (Think of shouting “fire” in a crowded theater.)

But when someone is a defendant in a criminal case and is released pre-trial on certain agreed upon conditions, the freedom to speak can be lawfully if narrowly restricted by the judge in order to serve the ends of justice. And that’s the situation we now have.

It’s easier to understand if we disregard for a moment that Trump’s day job is campaigning for president, and he is treated more like the mob boss he is. Let’s say Trump was a mafia leader and was issuing threats via social media, claiming “If you come for me, I’m going to come for you!” and saying of a key capo-turned-witness that he deserves “DEATH.” We need only substitute the name “John Gotti” for Trump in key parts of the brief, and it grows scary and ludicrous quickly. Here’s an example:

Similarly, no witness has suggested that he or she will not testify because of anything [John Gotti] has said….Nor has any witness suggested that [Gotti’s] protected statements have “influenc[ed] [his or her] testimony,” as the prosecution baselessly suggests.

This is entirely unsurprising, as [Gotti] has never called for any improper or unlawful action….

Unable to identify any instance where [Gotti] uttered any threat, the prosecution points to others, claiming [Gotti] “knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.” Again, the prosecution offers no evidence of any causal connection between his speech and the alleged unlawful acts of others to support this meritless claim. Regardless, it goes without saying that the Constitution does not permit the censorship of [Gotti] for the unprovoked acts of third parties, and no such alleged acts can justify a prior restraint of [Gotti]. 

A judge hearing that argument would probably respond, “Your client is an alleged mob boss with a known history of inciting violence on his behalf as a way to intimidate witnesses and court personnel. His words have already resulted in a death threat upon me. I find your argument unpersuasive in the extreme.”

Nonetheless, we cannot simply ignore the fact that Trump is a political leader with the support of nearly half the electorate, some of whom are willing to take up arms and act violently in his defense and on his behalf. Judge Chutkan must also be mindful that Trump will almost certainly violate any gag order she imposes, and therefore she has to be willing to sanction him, up to and including jailing him while he awaits trial.

Such a result, however, would play directly into Trump’s desire to cast himself as a victim of a political witch-hunt, the supposed goal of which is to silence him. And so Judge Chutkan must find ways not to allow Trump to hijack the court case through his antics and challenges to her authority. 

One penalty, which she has already suggested, is to move the Court date up closer so as to limit the damage Trump has upon the jury pool and to give less time for his followers to act on his behalf against witnesses and court personnel. But there is only so far she can press this before it becomes a burden upon the judicial system itself. 

Another would be to restrict his use of social media, which would immediately reduce his ability to create stochastic terror. While Trump can howl about being locked out of his social media, most of the American public got used to that while he was kicked off of Facebook and Twitter for years.

Jack Smith will get a chance to respond to Trump’s brief before the hearing takes place. And I imagine he will have much still to say about why the gag order is necessary and how it now must be applied against Trump.