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(Photo by Spencer Platt/Getty Images)
Last week, Judge Tanya Chutkan administratively stayed the gag order in Donald Trump’s election interference case in federal court in DC. The former president celebrated by attacking both Special Counsel Jack Smith and former White House chief of staff Mark Meadows over rumors that he’d testified to the grand jury under a grant of immunity.
“Some people would make that deal, but they are weaklings and cowards, and so bad for the future our Failing Nation. I don’t think that Mark Meadows is one of them, but who really knows?” he wrote ominously.
Just hours later, Trump managed to get himself sanctioned again in the ongoing civil fraud trial in New York when he violated the gag order banning him from publicly referring to Justice Arthur Engoron’s law clerk.
This put Trump’s lawyers John Lauro and Todd Blanche in an awkward position as they stared down the Saturday deadline to explain to Judge Chutkan why she should stay the gag order pending review by the DC Circuit. Luckily, they were up to the task!
In an absolutely gonzo footnote they explained that actually it’s the government’s fault that Trump had to publicly intimidate a witness. Or perhaps the media is to blame. In any event, gag orders are bad because they prevent a criminal defendant from publicly shittalking a witness and discouraging him from testifying. Okay, Your Honor?
Recent leaks regarding Meadows’ alleged testimony, which received wide media attention, demonstrate why the Gag Order is unworkable. If the Gag order had been in effect, President Trump would have been unable to respond to, or rebut, the false claims about his interactions with his former chief of staff—an issue that is important to many Americans in connection with the 2024 election. The key question is, for what legitimate constitutional purpose? It is not as though President Trump started the recent national discussion on Meadows. The media did that itself, presumably prompted by a source other than President Trump. The Gag Order would not have done anything to prevent a national discussion of this issue during a campaign. Thus, the only thing the Gag Order would accomplish is ensuring that President Trump could not respond to inappropriate prosecutorial or witness leaks, an obviously impermissible and wholly unconstitutional goal.
The rest of Trump’s brief was mostly taken up with overheated rhetoric claiming that the Brandenberg incitement standard applies to gag orders. Because, really, what the hell else are they going to say?
Weirdly, Judge Chutkan was not impressed with this concocted precedent.
“As the court has explained, the First Amendment rights of participants in criminal proceedings must yield, when necessary, to the orderly administration of justice—a principle reflected in Supreme Court precedent, the Federal Rules of Criminal Procedure, and the Local Criminal Rules,” she wrote last night, denying the requested stay. “And contrary to Defendant’s argument, the right to a fair trial is not his alone, but belongs also to the government and the public.”
The court then cited the 1991 Supreme Court case which set the standard for curbing extrajudicial statements by parties which might materially prejudice the case — spoiler alert: NOT Brandenberg.
Lauro’s argument that witness intimidation is good and necessary comes in for substantial judicial side-eye:
The statement singles out a foreseeable witness for purposes of characterizing his potentially unfavorable testimony as a “lie” “mad[e] up” to secure immunity, and it attacks him as a “weakling[] and coward[]” if he provides that unfavorable testimony—an attack that could readily be interpreted as an attempt to influence or prevent the witness’s participation in this case.
The court also notes that Lauro’s cries of vagueness are belied by his own client’s ability to abide by the order until it was administratively stayed, at which point he went right back to violating it with wild abandon. There’s also the fact that prosecutors have already turned over a witness list, which rather undercuts the claim that Trump couldn’t possibly guess which of his political enemies are okay to aim his mob at.
With PACER down for maintenance last night, Trump was able to get in one more hit on a witness before the gag order officially dropped.
I called Bill Barr Dumb, Weak, Slow Moving, Lethargic, Gutless, and Lazy, a RINO WHO COULDN’T DO THE JOB. He just didn’t want to be Impeached, which the Radical Left Lunatics were preparing to do. I was tough on him in the White House, for good reason, so now this Moron says about me, to get even, “his verbal skills are limited.” Well, that’s one I haven’t heard before. Tell that to the biggest political crowds in the history of politics, by far. Bill Barr is a LOSER!
Now he’s back to inchoate screaming that “The Corrupt Biden Administration just took away my First Amendment Right To Free Speech” in cahoots with “the very Biased, Trump Hating Judge in D.C., who should have RECUSED herself due to her blatant and open loathing of your favorite President, ME.”
Blah blah blah.
US v. Trump [DDC Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.
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