A federal judge on Monday issued a gag order on former President Donald Trump, limiting what he can say about special counsel Jack Smith’s federal prosecution into his alleged attempt to subvert in the 2020 presidential election.
The order restricts Trump’s ability to publicly target court personnel, potential witnesses, or the special counsel and his staff. The order did not impose restrictions on disparaging comments about Washington, DC, – where the jury will take place – or certain comments about the Justice Department at large, both of which the government requested.
“This is not about whether I like the language Mr. Trump uses,” Judge Tanya Chutkan said. “This is about language that presents a danger to the administration of justice.”
“His presidential candidacy does not give him carte blanche to vilify public servants who are simply doing their jobs,” the judge added.
Following the two federal indictments against the former president, Trump has lashed out against prosecutors, potential witnesses and the judge overseeing the election subversion case in Washington. Prosecutors with special counsel Jack Smith’s office say these comments are enough to warrant a narrow restriction on Trump’s speech around the case.
Chutkan, often the target of Trump’s attacks, warned the former president that comments he or his attorneys make could threaten the case.
“Mr. Trump is a criminal defendant. He is facing four felony charges. He is under the supervision of the criminal justice system and he must follow his conditions of release,” Chutkan said Monday during the hearing.
“He does not have the right to say and do exactly what he pleases. Do you agree with that?” she asked Trump attorney John Lauro, who responded: “100%.”
Trump’s attorneys have attacked the proposed order as fundamentally antithetical to his First Amendment rights and suggested the order is simply a way for President Joe Biden and the Justice Department to hurt Trump’s ability to campaign.
Lauro accused the special counsel’s office of trying “to prevent President Trump from speaking out about the issues of the day,” adding, “Every single issue that relates to this case also has political issues.”
In social media posts, Trump has attacked Chutkan as a “biased, Trump Hating Judge” and called Smith “deranged” and a “thug” as well as attacked individual members of his team.
“When you start to use a word like ‘thug’ to describe a prosecutor doing their job, that wouldn’t be allowed by any other criminal defendant,” Chutkan said. “Just because the defendant is running a political campaign does not allow him to do whatever he wants.”
She added: “If the message Mr. Trump wants to express is ‘my prosecution is politically motivated,’” he can do so without using “highly charged language.”
Chutkan on Monday pushed Lauro over Trump’s public posts targeting Smith’s office, saying that his “highly charged language” pushes the bounds of what a criminal defendant can say publicly about their legal case.
The judge said that Trump’s “troubling” posts may encourage harm against Smith and his team and questioned Trump’s attorneys as to why he should not be restricted from publicly attacking prosecutors during his case.
Chutkan specifically pointed to a Truth Social post in which the former president referred to Smith as a “thug,” asking Lauro: “In what kind of case do you think it would be appropriate for a criminal defendant to call the prosecutor a thug and stay on the streets?”
“‘Will no one rid me of this meddlesome priest’ comes to mind,” Chutkan said.
Lauro slammed proposed restrictions on Trump’s ability to discuss prosecutors, saying, “What kind of words does someone use to battle oppression” or a society that he believes is veering towards “totalitarianism.”
“President Trump firmly believes that these proceedings are brought by a politically motivated prosecutor,” Lauro added.
His word choices prompted Chutkan to ask him to tone down his language. The judge sat back in her chair, shaking her head, as Lauro spoke. She had repeatedly reminded him that Trump, as a criminal defendant, is able to face court-imposed restrictions about what he may say publicly about people involved in the case.
Lauro has agreed, but argued it may be impossible to enforce additional restrictions while he is campaigning for the presidency, and that everything Trump has said publicly abides by court orders so far.
During the hearing, Chutkan took issue with Lauro saying “what you have put in place is working,” regarding Trump’s release conditions. The judge laughed loudly in response to Lauro’s statement, and told the attorney to stop making political arguments in her courtroom.
Arguments put forth by Lauro have prompted Chutkan to cut him off several times, as he argues Trump should not be restricted on what he can say while campaigning for president.
Lauro at one point accused the special counsel’s office, through the proposed gag order, of trying “to prevent President Trump from speaking out about the issues of the day.”
But Chutkan made clear that she wouldn’t tolerate such rhetoric in her courtroom.
“Politics stops at this courtroom door,” she said.
Chutkan also reminded Lauro that Trump is a criminal defendant, with restrictions on him that he can’t intimidate witnesses or jurors while awaiting trial, while Joe Biden is not.
“We have no interest in stopping the defendant from running for office or defending his reputation, nor does our proposed order do that,” prosecutor Molly Gaston said during the hearing.
“This is about the participants, the witnesses, in this trial,” Gaston added. “It is limited to those individuals, and it is limited to statements that are intended to influence the venue or potential jurors.”
The judge added that the trial date set for early March won’t change: “This trial will not yield to the election cycle, and we will not revisit the trial date.”
Prosecutors say Trump’s attacks against potential witnesses including former Vice President Mike Pence and former Attorney General Bill Barr – could result in witness intimidation by his followers.
“The defendant’s relentless public posts marshaling anger and mistrust in the justice system, the Court, and prosecutors have already influenced the public,” prosecutors wrote in a filing last month. “For instance, on August 5, 2023, an individual was arrested because she called the Court’s chambers and made racist death threats to the Court that were tied to the Court’s role in presiding over the defendant’s case.”
They told the judge Monday their goal is not to stop Trump from campaigning.
“We have no interest in stopping the defendant from running for office or defending his reputation, nor does our proposed order do that,” Gaston said.
“This is about the participants, the witnesses, in this trial,” Gaston added. “It is limited to those individuals and it is limited to statements that are intended to influence the venue or potential jurors.”
When he first appeared in Chutkan’s courtroom in late August on charges that he unlawfully worked to overthrow the 2020 election results, the judge warned Trump against making “inflammatory” comments in the case.
“Legal trials are not like elections, to be won through the use of meeting halls, the radio and newspaper,” Chutkan said at the time, later adding: “I will take whatever measures are necessary to safeguard the integrity of these proceedings.”
Any restrictions on Trump’s speech, regardless of how narrow, would likely be brought up in appeals in the case along with defense attorney’s claims that the federal cases against Trump are being rushed in order to secure a conviction against him before the election.
If Chutkan does decide to place restrictions on what the former president can say, she won’t be the first judge to do so.
In early October, the judge overseeing the ongoing New York civil fraud trial against Trump issued a gag order against the former president after he attacked a member of the court’s staff.
“Consider this statement an order forbidding all parties from posting, emailing or speaking publicly about any members of my staff,” Judge Arthur Engoron said after Trump accused his clerk of being Senate Majority Leader Chuck Schumer’s girlfriend and calling for her to be dismissed on a social media post.
“Failure to abide by this … will result in serious sanctions,” Engoron said.
This story has been updated with additional developments.