IE 11 is not supported. For an optimal experience visit our site on another browser.

Trump’s sneaky strategy to undermine Jack Smith’s requested gag order

As with just about everything else in this trial, the decision Judge Tanya Chutkan faces is unprecedented.

At the beginning of last week, Donald Trump’s lawyers filed a motion requesting that U.S. District Judge Tanya Chutkan recuse herself from the federal case charging him with trying to illegally overturn the 2020 presidential election. The former president’s legal team claimed that statements she had made during prior court proceedings indicated bias against Trump. And then on Friday, we learned that the government had asked Chutkan to impose a narrow gag order on Trump. The special counsel contended that Trump’s incendiary public statements could intimidate witnesses and prejudice the jury pool. 

Those two motions, which could fundamentally affect the trajectory of the case, might well be connected. While Jack Smith’s proposed gag order only became public when Chutkan unsealed it on Sept. 15, it was initially filed under seal on Sept. 5, six days before Trump filed his motion requesting Chutkan recuse herself. 

Trump has a well-documented strategy of attacking “individuals or institutions that present an obstacle or challenge” to him.

This sequence has been omitted or underemphasized in most of the commentary surrounding both motions, but it is essential to understand Trump’s gamesmanship. It seems that the Trump team’s response to Smith’s request for the gag order was not merely to directly oppose it, but also to try to paint Chutkan as biased before she rules on the gag order. 

Make no mistake: The issuance of a gag order against a defendant who is being publicly prosecuted — yet has a constitutional presumption of innocence — is a significant curtailment of that person’s rights under the First Amendment. Defendants should generally be allowed to defend themselves when an indictment so publicly accuses them of wrongdoing. Nevertheless, constitutional rights are not absolute; they can be restricted in certain extreme circumstances. Pretrial gag orders are far from unheard of in criminal trials — and similar restrictions have been imposed in recent high-profile cases, including the prosecutions of Roger Stone and Maria Butina

Trump’s inflammatory rhetoric warrants such an action. Since he was indicted in this case, Trump has unleashed an onslaught of vicious attacks and smears at the prosecutors, the judge, prospective witnesses, and even the district in which his trial will take place (Washington, D.C.) and its citizens.

Smith’s office explicitly ties this public barrage to the disinformation campaign, as alleged in the indictment, that Trump waged after the 2020 presidential election. As the special counsel’s office notes in its request for a gag order, Trump has a well-documented and unfortunately effective strategy of attacking “individuals or institutions that present an obstacle or challenge” to him. The former president “knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.” 

To counteract Trump’s incendiary rhetoric, Smith’s motion points to Chutkan’s earlier actions. Shortly after the indictment was unsealed, Trump’s lawyer John Lauro gave multiple interviews opining about the case in detail, discussing potential witnesses and outlining defenses he planned to raise. Smith claims that these statements violated Washington, D.C., Local Criminal Rule 57.7(b), which prohibits attorneys from releasing public extrajudicial statements regarding “the identity, testimony, or credibility of prospective witnesses” and “the merits of the case or the evidence in the case.” Soon after Lauro’s whirlwind television tour, Chutkan admonished the parties and counsel not to engage in this type of behavior, and, since then, Smith notes, Lauro has not made any similar statements in public. 

However, Trump has continued to do so. For instance, he has assailed potential witnesses (including former Vice President Mike Pence), the special counsel and his legal team (calling them “[d]eranged” and “[t]hugs”), as well as Chutkan herself (strongly implying that she doesn't intend to give Trump a fair trial).

Thus, Smith’s team requests that Chutkan also issue a “narrowly tailored” gag order against Trump. Local Criminal Rule 57.7(c) allows a court to issue a “special order governing … extrajudicial statements by parties” in “widely publicized or sensational” criminal cases. The special counsel’s proposed restrictions would prevent Trump from issuing any public statements “regarding the identity, testimony, or credibility of prospective witnesses” and “about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.” 

Chutkan has the authority to impose a gag order to ensure the integrity of the trial.

As with just about everything else in this trial, the decision Chutkan faces is unprecedented. Never before has a gag order been issued to a former president who is also simultaneously running for president. Trump and his lawyers have been quick to trumpet his rights under the First Amendment, not only with regard to his public statements but as a defense to his entire alleged criminal conduct. 

However, these erroneous claims do not negate the reality that Chutkan has the authority to impose a gag order to ensure the integrity of the trial. Indeed, the requested restrictions target only such speech and would allow Trump to continue airing his views regarding the merits of the case. 

The solid foundation for a limited gag order may explain Trump’s motives in asking for Chutkan’s recusal. Legally, the recusal motion looks to be a nonstarter. The bar for recusal is extremely high, judges have significant discretion, and nothing in Chutkan’s record exhibits the requisite bias or appearance of bias necessitating recusal under the law.

The timing of the recusal motion — a month after the indictment — also hints at Trump’s strategy. Chutkan’s remarks that supposedly showed her bias toward Trump were made before the August indictment, so the former president could have brought this motion sooner — for example, before Chutkan set the trial date. Yet he chose not to do so until after Smith’s office requested a gag order. 

As we saw in the battle over the trial schedule, the arguments that Trump’s lawyers make are not just intended for the judge, but also for a broader public audience. Public intimidation is a crucial tactic in Trump’s legal and political strategy, one he has deployed successfully in the past.

Additionally, Trump may be attempting to establish a false equivalence between himself and Chutkan. You can see the fable the Trump team is trying to create, comparing Chutkan’s supposed comments about Trump at a prior hearing with an anticipated ruling from that judge limiting Trump from speaking publicly about her, Smith and his fellow prosecutors, or potential witnesses and jurors. 

With that context, given the singular nature of this case and Trump’s public profile, Chutkan has been confronted with a unique dilemma: To not impose the gag order may allow the intimidation of potential witnesses and jurors, but imposing the gag order provides further grist for Trump’s public narrative. 

Moreover, compounding her task is the question of how any gag order against Trump might be enforced.

However, Chutkan has already previewed a possible solution. She indicated last month that she would be inclined to speed up the timetable of the trial in order to prevent the case from being undermined by Trump. Her scheduling order — in which the trial would begin on March 4 — gives her feasible wiggle room to do so. This approach directly addresses the strong interest Trump and his lawyers have to delay the trial for as long as possible. 

It is important that the judge see past the jockeying and gamesmanship and not retreat from this moment. While there is no perfect solution, to avoid addressing Trump’s statements — which are clearly intended to spoil the possibility of a fair trial — would unfairly permit Trump to run roughshod over the judicial proceedings, and it would incentivize the type of public framing Trump and his lawyers have engaged in so far.