Special Counsel Jack Smith’s office’s requested gag order against former President Donald Trump is not quite as “narrowly tailored” as he claimed, legal experts told the Daily Caller News Foundation.
Prosecutors asked U.S. District Judge Tanya Chutkan on Sept. 15 to issue a “narrowly tailored” gag order barring Trump from making public statements that are “disparaging and inflammatory, or intimidating” toward any “party, witness, attorney, court personnel, or potential jurors,” as well as any statements “regarding the identity, testimony, or credibility of prospective witnesses.” The scope and circumstances surrounding the request — which a hearing scheduled for Monday will consider — are far outside what is normal in criminal trials, experts told the DCNF.
Zach Smith, Heritage Foundation legal fellow and former assistant U.S. attorney, told the DCNF that gag orders are “generally heavily disfavored under First Amendment law” and that the typical reasons for issuing one are likely not “right in this case.”
Securing a gag order requires showing clear and present danger, an imminent threat or some other compelling government interest, as well as demonstrating there was no less restrictive means of achieving the goal and that the order is narrowly tailored, Smith explained.
Since Trump is a presidential candidate, Smith said the gag order could create “a very odd situation of witnesses who maybe have proven themselves political players, being able to comment on Donald Trump, being able to attack and him not being able to respond, which would be very problematic.”
Trump’s lawyers argued that the gag order was an effort to censor political opposition as he gains in the polls against President Joe Biden.
“His administration’s plan is quite simple: unleash a 45-page speaking indictment, discuss and leak its talking points in the press, and then cynically attempt to invoke the Court’s authority to prevent President Trump and those acting on his behalf from presenting his side of the story to the American people during a political campaign,” lawyers argued.
John Shu, an attorney and legal commentator who served in the George H.W. Bush and George W. Bush administrations, said it is “highly unlikely” his lawyers will be able to demonstrate the Special Counsel office’s “primary purpose behind its asking for a gag order is to censor or suppress his political speech or presidential campaign. Nevertheless, Shu said it may be an “unavoidable side effect.”
“Courts are generally leery of prior restraints on political speech, and there is no practical way for Trump to run for president without discussing his many pending criminal and civil cases, all of which are very much in the public eye,” he continued.
Shu said that a gag order preventing Trump from making “intimidating or disparaging statements” against court staff, jurors or witnesses could be more likely to hold up on appeal. But a gag order barring such statements against the federal government, judge or prosecutors likely would not.
“Because constitutional rights in a criminal trial, such as the 1st, 5th, and 6th Amendments, belong to the defendant, not to the prosecutors, a gag order which prohibits a defendant from criticizing the government or a public figure is much less likely to survive appellate scrutiny,” Shu said.
Smith told the DCNF this gag order request is “uncharted territory in a lot of ways.” “Based on the scope of the gag order Jack Smith is seeking, if the judge accepts this as written, it puts Trump in a very disadvantageous position,” he said.
Katelynn Richardson on October 15, 2023
