by Karen Friedman Agnifilo
MeidasTouch
Oct 16, 2023
Donald Trump claims that his words are protected by the First Amendment giving him license to say whatever he wants no matter the consequence. Thus far he appears to be right.
Since his declaration for presidential candidacy – the ultimate legal defense in practice – he is largely left untouched other than an anemic finger wagging recent gag order in his New York civil fraud trial telling him to stop threatening court staff. However, not only are his words not protected by the First Amendment, they also potentially rise to the level of prosecutable crimes and actionable conduct. That is because when it comes to free speech, context is everything.
For example, as the age-old example goes, you aren’t free to falsely yell “fire” in a crowded theater. If that causes a stampede and someone dies, one could be prosecuted for reckless manslaughter, because courts have held that this would constitute “conduct” not “speech” and thus it is not protected. If for example, that same theater is totally empty, there will be no consequence; context is everything.
Donald Trump’s words almost always result in inciting others to act — and he knows it.
As he said on May 10, 2023, in his televised CNN Town Hall, his supporters listen to him “like no one else” and, he uses them like personal weapons. Being admonished or told to stop, only fuels his behavior and he continues to attack, even after observing the horrific consequences of his words.
Many examples are listed below, but no other example is as clear as when he fired up an armed crowd of supporters on the Ellipse on January 6 and then pointed and shot them toward the Capitol. As so many who stormed the Capitol that day have said, they heard him loud and clear and thought they were doing what he asked them to do.
Trump can no longer claim ignorance that his words cause violence, and as such, he should be held responsible for anything that happens as a result of his violent rhetoric as he will have proverbial blood on his hands.
The Special Counsel said in a recent filing for a gag order, “The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.”
Two examples cited in the motion were a Texas woman inspired to call Judge Chutkan a racist term and threatened to kill her if trump wasn’t re-elected; and, a Utah man who threatened to kill President Biden and made threats to Attorney General Merrick Garland, Manhattan District Attorney Alvin Bragg and New York Attorney General Letitia James on Truth Social.
Trump’s language has always been racist and inflammatory, so this is nothing new. Recall before he was elected President, saying things such as referring to “shithole countries” in Africa and immigrants as violent gang members, or boasting about grabbing women in their private parts. He is also known for using racist references such as “animal” and “rabid” to describe Black district attorneys while also calling them “racist” and also lying about their personal lives.
During Monday's hearing in the Federal January 6th case, on whether or not to impose a limited gag order on Trump, the Special Counsel will not focus on the threats and violence of Trump’s words. He will instead be focusing on the need to protect the integrity of the trial, the evidence and future jurors, and this will be by design.
The Special Counsel will argue that a limited gag order is needed in order to both ensure that Trump, the presumptive Republican nominee’s free speech is protected, while at the same time the right to a fair trial is protected.
If Trump were any other criminal defendant, however, today’s hearing would not be to determine whether or not to impose a limited gag order; instead, it would be about whether or not to detain him in jail during the pendency of the criminal case due to his flagrant flouting of the rules by his threats, taunts and inciting violence. Trump is being treated differently than every other defendant, but not in the way he claims – this is the opposite of a witch hunt – he is being treated with kid-gloves and allowed to get away with things no other defendant has or would.
Below are several highlights of Trump’s escalating attacks on judges, prosecutors, witnesses and civilians. They are cruel, overtly racist, verifiably lies and at a minimum reckless; although, one could argue they are deliberately said and intended to incite the very violence that ensues and thus criminal.
September 29th, 2020 – During a debate for president, after refusing to condemn white supremacy he said:
Proud boys: “stand back and stand by”
Aaron Rupar
@atrupar
"Proud Boys, stand back and stand by": It bears repeating -- there has been no presidential debate moment more disqualifying than this
8:41 AM · Sep 30, 2020
November 2020 – The day after election day, Trump’s crime spree began when he launched a disinformation campaign that he had won in order to steal the election and intimidate anyone who disagreed with him.
BBC News (World)
@BBCWorld
"This is a fraud on the American public... we were getting ready to win this election. Frankly, we did win this election"
Trump claims election victory, but with millions of uncounted votes it is too early to credibly make that claim
#Election2020 http://bbc.in/US2020Live
12:38 AM · Nov 4, 2020
Undaunted, defendant Trump continued to attack people who he knows were already threatened and harassed as a result of his words.
For example:
November 17, 2020 – Defendant fired his director of Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency after he made statements assuring the integrity of the election. Trump attacked him again and one of Trump’s attorneys said he “should be drawn and quartered. Taken out at dawn and shot.”
Daniel Chaitin
@danielchaitin7
VIDEO of former U.S. Attorney Joe diGenova, who is now a member of the Trump legal team, saying on Newsmax that former Trump cybersecurity chief Chris Krebs “should be drawn and quartered. Taken out at dawn and shot.”
5:57 PM · Nov 30, 2020
He and his family received death threats and had to evacuate their home.
December 8th, 2020 – He filed a lawsuit and put Trump on notice of the threats and harassment, yet Trump continued to attack him anyway.
In 2020, defendant and his co-conspirators spread false accusations of misconduct against Ruby Freeman and Shaye Moss, the Georgia election workers. As a result, they were inundated by racist threats and intimidation. Ten days after a release of a transcript of an interview they gave to the Select Committee, the defendant, despite knowing the threats the election workers had received and the clear falsity of the claims of misconduct, attacked them again and repeated the lies on Truth Social.
December 2020 – Trump attacked Georgia Lieutenant Governor Geoff Duncan who had been harassed after the defendant inspired his followers to do so by labeling him a “RINO Never Trumper” who was “dumb or corrupt” and urged “we need every great Georgian to call him out.” He reported he received death threats. Despite this, after he was called to testify in the Georgia Grand Jury, the defendant posted that he shouldn’t testify.
Donald J. Trump
@realDonaldTrump
Georgia Lt. Governor @GeoffDuncanGA is a RINO Never Trumper who got himself elected as LG by falsely claiming to be "pro-Trump". Too dumb or corrupt to recognize massive evidence of fraud in GA & should be replaced! We need every great Georgian to call him out!
#SpecialSession!
7:21 PM Dec 7, 2020
Donald Trump targets GA Lt. Gov. Duncan
realDonaldTrump / twitter
December 1, 2020 – A Georgia election official held a widely televised press conference in which he pleaded with the defendant to stop, saying if he didn’t “someone’s going to get hurt, someone’s going to get shot, someone’s going to get killed.”
The Hill
@thehill
Gabriel Sterling: "Someone's going to get hurt, someone's going to get shot, someone's going to get killed. And it's not right."
9:45 AM · Dec 2, 2020
As outlined in the special counsel’s motion for a limited gag order, in United States v. Trump, several examples are cited by the Special Counsel of horrific attacks on public servants, election workers and others.
Between 11/3/2020 and 1/6/21, he went after numerous individuals whom he targeted who were then subject to threats and harassment:
Defendant tweeted about (redacted) who said there was no evidence of election fraud. After the tweet, there was an increase in the volume and severity of graphic and personal threats against him and his family. Realdonaldtrump/status/132652585175265689"
Pence, during the 2020 election, whose home address was listed on the Internet and whose family was threatened with violence after the defendant and surrogates publicly derogated him for certifying the election.
(Redacted) during the 2020 election, who received threatening communications after Pence certified the election and the defendant issued public posts about them.
(Redacted) who required additional police protection after defendant targeted him on Twitter for rejecting one of defendant’s election challenges.
Jan 6th 2021 – The insurrection.
March 23, 2023 – Federal Judge Lewis Kaplan adopted anonymous juror measures to protect juror privacy “keeping jurors’ identities secret from the parties upon findings that in the context of the defendant’s repeated attacks on “courts, judges, various law enforcement officials and other public officials, and even individual jurors in other matters.”
March 24, 2023 – Between 1AM and 2AM, Trump posted on Truth Social threatening “death and destruction” if he was criminally charged in NY after posting an image of himself holding a baseball hat next to Manhattan DA Alvin Bragg’s head. He also called Bragg a “degenerate psychopath that truly hates the USA!” in the same post.
Donald J. Trump
@realDonaldTrump
What kind of person can charge another person, in this case a former President of the United States, who got more votes than any sitting President in history, and leading candidate (by far!) for the Republican Party nomination, with a Crime, when it is known by all that NO Crime has been committed, & also known that potential death & destruction in such a false charge could be catastrophic for our Country? Why & who would do such a thing? Only a degenerate psychopath that truely hates the USA!
Marr 24, 2023, 1:08 AM
Donald Trump threatens "death and destruction" in advance of h is first arrest
realDonaldTrump / Truth Social
Donald J. Trump
@realDonaldTrump
nationalfile.com/just-10-of-ma...
Just 10% of Manhattan Residents Voted for Anti-Trump DA in 2021 Election
Anti-Trump Manhattan DA Alvin Bragg won the votes of only 10% of Manhattan residents in New York City's 2021 election cycle.
National File
The infamous baseball bat tweet
realDonaldTrump / Truth Social
Hours after the post the DAs office received a threatening letter with white powder.
March 18th, 2023 – Defendant posted an erroneous claim that he was to be arrested three days later and urged people to protest and “take our nation back” – eerily reminiscent of January 6th. And then when his allies said to peacefully protest or not at all Trump said “our country is being destroyed and they tell us to be peaceful.”
Donald J. Trump
@realDonaldTrump
Page 2: NOW ILLEGAL LEAKS FROM A CORRUPT & HIGHLY POLITICAL MANHATTAN DISTRICT ATTORNEYS OFFICE, WHICH HAS ALLOWED NEW RECORDS TO BE SET IN VIOLENT CRIME & WHOSE LEADER IS FUNDED BY GEORGE SOROS, INDICATE THAT, WITH NO CRIME BEING ABLE TO BE PROVEN, & BASED ON AN OLD & FULLY DEBUNKED (BY NUMEROUS OTHER PROSECUTORS!) FAIRYTALE, THE FAR & AWAY LEADING REPUBLICAN CANDIDATE & FORMER PRESIDENT OF THE UNITED STATES OF AMERICA, WILL BE ARRESTED ON TUESDAY OF NEXT WEEK. PROTEST, TAKE OUR NATION BACK!
Trump's false tweet about his upcoming arrest and a call to action to his followers.
realDonaldTrump / Truth Social
Trump also called Bragg an animal and “Soros backed animal” and a “degenerate psychopath who hates the USA.
Donald J. Trump
@realDonaldTrump
WHY WON'T BRAGG DROP THIS CASE? EVERYBODY SAYS THERE IS NO CRIME HERE. I DID NOTHING WRONG! IT WAS ALL MADE UP BY A CONVICTED NUT JOB WITH ZERO CREDIBILITY, WHO HAS BEEN DISPUTED BY HIGHLY RESPECTED PROFESSIONALS AT EVERY TURN. BRAGG REFUSES TO STOP DESPITE OVERWHELMING EVIDENCE TO THE CONTRARY. HE IS A SOROS BACKED ANIMAL WHO JUST DOESN'T CARE ABOUT RIGHT OR WRONG NO MATTER HOW MANY PEOPLE ARE HURT. THIS IS NO LEGAL SYSTEM, THIS IS THE GESTAPO, THIS IS RUSSIA AND CHINA, BUT WORSE. DISGRACEFUL!
Trump calls DA Bragg a "Soros backed animal" in a Truth Social post
realDonaldTrump / Truth Social
May 10, 2023 – Trump admitted his supporters listen to him “like no one else.”
April 4, 2023 – Manhattan DA indictment for election interference/hush money case.
April 12, 2023 – Bragg was sent a powdery substance with a threatening letter that said “ALVIN: I AM GOING TO KILL YOU !!!!!!!!!!!!!” (one of “several hundred threats”)
June 8, 2023 – Trump is arrested as part of the Mar-a-Lago documents case.
June 2023 – Trump calls Jack Smith a “thug” and “deranged."
June 12, 2023 – AG James talks about having received numerous death threats as a result of Trump’s racist language, including calling Letitia James a “Racist A.G. Letitia ‘Peakaboo’ James”
July 5, 2023 – Trump says Jack Smith looks like a “crackhead."
Donald J. Trump
@realDonaldTrump
Does anybody really believe that the COCAINE found in the West Wing of the White House, very close to the Oval Office, is for the use of anyone other than Hunter & Joe Biden. But watch, the Fake News Media will soon start saying that the amount found was "very small," & it wasn't really COCAINE, but rather common ground up Aspirin, & the story will vanish. Has Deranged Jack Smith, the crazy, Trump hating Special Prosecutor, been seen in the area of the COCAINE? He looks like a crackhead to me!
Trump calls Special Counsel Jack Smith a "crackhead" in a social media post.
realDonaldTrump / Truth Social
August 2, 2023 – Trump is indicted by Jack Smith for Jan 6th.
August 4, 2023 - The day after he was arraigned, the defendant tweeted “If you go after me, I’m coming after you."
Donald J. Trump
@realDonaldTrump
IF YOU GO AFTER ME, I'M COMING AFTER YOU!
Donald Trump makes a threat on h is social media app following his arraignment in DC.
realDonaldTrump / Truth Social
Followed by several posts: Trump attacked Judge Chutkan when he referred to as a “fraud dressed up as a judge in Washington, D.C. who is a radical Obama hack” and a “biased Trump hating judge” and claimed he can’t get a fair trial from her.
August 5, 2023 – Trump called Mike Pence “liddle” and said that he’s gone to the “dark side” and called him “delusional” and “he was not a very good person.”
Donald J. Trump
@realDonaldTrump
WOW, it's finally happened! Liddle' Mike Pence, a man who was about to be ousted as Governor Indiana until I came along and made him V.P., has gone to the Dark Side. I never told a newly emboldened (not based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was "too honest." He's delusional, and now he wants to show he's a tough guy. I once read a major magazine article on Mike. It said he was not a very good person. I was surprised, but the article was right. Sad!
Aug 05, 2023, 10:20 PM
Trump calls Mike Pence "Liddle" in a post.
realDonaldTrump / Truth Social
August 7, 2023 – He called Jack Smith “deranged” and accused his “thug prosecutors” of leaking information to the media.
August 8, 2023 – Talking about Fani Willis, Trump called her a racist and a “rabid partisan” and spread a false story that she had a relationship with a gang member she was prosecuting
August 15, 2023 – Trump is indicted in Georgia.
August 18, 2023 – Grand jurors in Fulton County received death threats with one online poster saying “these jurors have signed their death warrant by falsely indicting President Trump.”
August 2023 – Trump attacked the DOJ calling it the "Department of Injustice" and calling the Special Counsel’s Office a “team of thugs” and reiterated the lie that the election was “rigged and stollen” (sic) in response to Giuliani’s arrest.
August 28, 2023 – Again, Trump called Jack Smith deranged and his team “thugs” and lied that they were caught going to the White House to indict him. He reiterated that this is a witch hunt, that Joe Biden is “crooked” and that Judge Chutkan is a “Trump hating judge.”
August 17, 2023 – Trump attacked his former Attorney General Bill Barr (also a witness in the January 6th case), regarding the subject of his testimony.
Trump blasts GA prosecutors and election “riggers."
September 22, 2023 – Donald Trump threatened General Mark Milley and suggested he be executed. Prosecutors later wrote, "No other criminal defendant would be permitted to issue public statements insinuating that a known witness in his case should be executed; this defendant should not be, either."
Week of of 10/2/23 – Trump escalated his conduct by attacking Judge Engoron’s law clerk during the civil trial posting on his Truth Social account a photo of her and accusing her of being Chuck Schumer’s girlfriend, forcing the judge to issue a gag order.
Also, referring to NY AG Letitia James, Trump said: “You ought to go after this attorney general.”
Trump also said that Judge Engoron should be disbarred and criminally prosecuted.
@Acyn • Follow
Trump: This is a judge that should be disbarred. This is a
judge that should be out of office. This is a judge that
some people say could be charged criminally for what
he's doing. He's interfering with an election
11:32 AM Oct 2, 2023
October 4, 2023 – Fulton County DA Fani Willis reports that she has received 150 personal threats in the past two months, including death threats, ones that use the “n-word” and other racist tropes including calling her a “Jim Crow Democrat whore.”
October 15, 2023 – The night before his gag order hearing, Trump attacked Judge Chutkan and called her “a highly partisan Obama appointed Judge” and all the prosecutors and judges involved in his various cases “political Hacks and Thugs.”
Donald J. Trump
@realDonaldTrump
Tomorrow is a big day for Democracy. A Leaking, Crooked and Deranged Prosecutor, Jack Smith, who has a terrible record of failure, is asking a highly partisan Obama appointed Judge, Tanya Chutkan, who should recuse herself based on the horrible things she has said, to silence me , through the use of a powerful GAG ORDER, making it impossible for me to criticize those who are doing the silencing, namely Crooked Joe Biden, and his corrupt and weaponized DOJ & FBI. They want to take away my First Amendment rights, and my ability to both campaign and defend myself. In other words, they want to cheat and interfere in the 2024 Presidential Election. Nothing like this has ever happened in our Country before. It is strictly Banana Republic kind of "stuff." These political Hacks and Thugs are destroying our Country. Let's see what happens on Monday in Judge Chutkan's courtroom. Will America survive, or not? I'll be campaigning in the Great State of IOwa, where I am leading by 50 Points!!!
Oct 15, 2023 at 10:28 PM
Trump attacks Judge Chutkan the night before his hearing
Truth Social
In addition to a request for a limited gag order, on 10/10/23, the Special Counsel, in another court filling, asked the Court for a prohibition against publicizing jurors’ identities because of his “continued use of social media as a weapon of intimidation in court proceedings.” This is one more way the Special Counsel is seeking to protect the integrity of the trial and protect jurors from Trump’s violence.
At a bare minimum, Judge Chutkan must impose this limited gag order on defendant Trump whose rhetoric has escalated in the face of judicial admonishments without any concern for the carnage left in its wake.
Not only does Trump thumb his nose in the face of judicial authority making a mockery of the justice system, but he is also putting lives at risk.
Someone must stop these calls for violence before someone else gets hurt.
Karen Friedman Agnifilo served as Chief Assistant District Attorney of the Manhattan District Attorney’s Office. She is the co-host of Legal AF podcast on the MeidasTouch Network and a CNN Contributor.
***********************
Federal Judge SHUTS DOWN Trump’s THREATS and He CAN’T HANDLE IT
by Karen Agnifilo
MeidasTouch
Oct 17, 2023
Federal Judge Tanya Chuktan has finally ordered a gag order on Trump for his continued threats and harassment of court staff and prosecutors. Former Prosecutor and Host of Legal AF, Karen Friedman Agnifilo reports.
Transcript
The gag order has finally, finally come out from Judge Tanya Chutkan after a hearing yesterday to discuss whether or not Donald Trump should finally have some consequence for his vicious and violent attacks on everyone, from prosecutors, to witnesses, to judges, to court staff. You name it he has been issuing threats, and he has been saying things to people, that has caused other people -- like his followers; many of his followers -- to engage in violent conduct, and violent behavior. And it's well documented. In fact, if you go to Meidastouch.com, and look under contributors, I recently wrote an article that lists, in chronological order, all of the various times that Donald Trump has literally -- this isn't meant to be 100% comprehensive -- but you'll get the gist: it's all of the times he's threatened people. And there are links to the actual threats, so you can see for yourself. If right before there's an indictment of him, and he puts a baseball bat next to Alvin Bragg's head, is that then calling for death and destruction? Is that a threat? I think so. Or you can see where, right around the time that he was being sued by Attorney General Tish James, he makes threats about her, and makes racist comments, and he says things like, "If you know you come after me, I'm coming after you," I mean, over and over and over again. He said that General Milley, one of the witnesses potentially in the case, that he should be shot by firing squad. I mean really violent, vicious, racist comments, over and over and over again.
And what we put in this article that we wrote, we put exactly the dates that he was indicted or arraigned as well. So you can see how it's really cause and effect, cause and effect, cause and effect, and how he's really actually threatening these specific people, and that he is trying to intimidate witnesses, and judges, and court staff, and prosecutors. And it just couldn't be more clear. So I invite you to go to Meidastouch.com, and read that article.
But let's see what the gag order is that finally was issued. So Jack Smith brought it to the Court's attention, but he framed it slightly differently than I'm framing it, which is, he said, "Look, there needs to be a gag order, because otherwise potential jurors and witnesses, etc., are going to be impacted, and we have to protect the Integrity of the proceeding, we have to protect the case we can't let extrajudicial statements come out that could poison the jury in any way, or make it so that that proceeding isn't fair, that the jurors aren't fair and impartial." And he did it that way by design, because Donald Trump declared his candidacy for President in order to put himself in a category where he has a heightened right to free speech, because he's a political candidate. And so, in some ways, it's the ultimate defense to a crime, because any other defendant, frankly, if they engaged in what Donald Trump was engaging in, and saying the things that he's saying, they'd be put in jail. And there is no other criminal defendant who would ever be allowed to get away with what he has gotten away with in this case, and continues to get away with in this case, over and over and over again. But you got to be careful because he's a political candidate, and he has a right to free speech, and as a candidate, Judge Chutkan, who's an amazing federal judge, she was posing hypotheticals: "Okay, he can comment on the facts of a case, if asked, because he's running for office, but why does he have to call Jack Smith a 'thug'? Why does he have to call him a 'crackhead'? Why is that an important part of commenting on the case, you know? Why does he have to threaten people? Why does he have to call names?" And she kept posing hypotheticals, and she really caught John Lauro, the defense attorney, flat-footed. And so he kind of didn't know how to respond, or what to say. So instead, what does he do? He raises his voice, you know, and yells, because, you know, that's what what people do when when they don't have actual substantive answers to a question. And, you know, she told him to tone it down, and he's like, "I have toned it down; I am toning it down, Judge." I mean, it's just really ridiculous that this is what they're doing. She even said, at one point, "You know, you're clearly playing to an audience different than the court," which is her way of saying, "You know, what you're doing is not effective, and clearly you're doing this just to influence the public, because you're not doing anything to help yourself here."
But let's look at our actual order. It's three pages. It just came out.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
DONALD J. TRUMP,
Defendant.
Criminal Action No. 23-257 (TSC)
OPINION AND ORDER
For the reasons set forth below and during the hearing in this case on October 16, 2023, the government’s Motion to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings, ECF No. 57, is GRANTED in part and DENIED in part.
Under binding Supreme Court precedent, this court “must take such steps by rule and regulation that will protect [its] processes from prejudicial outside interferences.” Sheppard v. Maxwell, 384 U.S. 333, 363 (1966). The First Amendment does not override that obligation. “Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice. But it must not be allowed to divert the trial from the very purpose of a court system to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.” Id. at 350–51 (cleaned up); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 n.18 (1984) (“Although litigants do not surrender their First Amendment rights at the courthouse door, those rights may be subordinated to other interests that arise in this setting. For instance, on several occasions this Court has approved restriction on the communications of trial participants where necessary to ensure a fair trial for a criminal defendant.”) (quotation omitted). Here, alternative measures such as careful voir dire, jury sequestration, and cautionary jury instructions are sufficient to remedy only some of the potential prejudices that the government’s motion seeks to address.
In order to safeguard the integrity of these proceedings, it is necessary to impose certain restrictions on public statements by interested parties. Undisputed testimony cited by the government demonstrates that when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed. See ECF No. 57 at 3–5. Since his indictment, and even after the government filed the instant motion, Defendant has continued to make similar statements attacking individuals involved in the judicial process, including potential witnesses, prosecutors, and court staff. See id. at 6–12. Defendant has made those statements to national audiences using language communicating not merely that he believes the process to be illegitimate, but also that particular individuals involved in it are liars, or “thugs,” or deserve death. Id.; ECF No. 64 at 9–10. The court finds that such statements pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment. And that risk is largely irreversible in the age of the Internet; once an individual is publicly targeted, even revoking the offending statement may not abate the subsequent threats, harassment, or other intimidating effects during the pretrial as well as trial stages of this case.
The defense’s position that no limits may be placed on Defendant’s speech because he is engaged in a political campaign is untenable, and the cases it cites do not so hold. The Circuit Courts in both United States v. Brown and United States v. Ford recognized that First Amendment rights must yield to the imperative of a fair trial. 218 F.3d 415, 424 (2000); 830 F.2d 596, 599 (1987). Unlike the district courts in those cases, however, this court has found that even amidst his political campaign, Defendant’s statements pose sufficiently grave threats to the integrity of these proceedings that cannot be addressed by alternative means, and it has tailored its order to meet the force of those threats. Brown, 218 F.3d at 428–30; Ford, 830 F.2d at 600. Thus, limited restrictions on extrajudicial statements are justified here. The bottom line is that equal justice under law requires the equal treatment of criminal defendants; Defendant’s presidential candidacy cannot excuse statements that would otherwise intolerably jeopardize these proceedings.
Accordingly, and pursuant to Local Criminal Rule 57.7(c), it is hereby ORDERED that:
All interested parties in this matter, including the parties and their counsel, are prohibited from making any public statements, or directing others to make any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.
This Order shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence.
In addition, the sealed version of the government’s Motion to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings, ECF No. 56, is DENIED as moot.
Date: October 17, 2023
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
"OPINION AND ORDER: For the reasons set forth below and during the hearing in this case on October 16, 2023, the government’s Motion to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings, ECF No. 57, is GRANTED in part and DENIED in part." So Jack Smith asked for a limited gag order, not a full gag order. And she is giving him some of what he asked for, but not all of it. So this is her way of being fair, and not just being one-sided. She then goes on to say "Under binding Supreme Court precedent, this court “must take such steps by rule and regulation that will protect [its] processes from prejudicial outside interferences.” She cites Shephard v. Maxwell, a case from 1966. The First Amendment does not override that obligation. “Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice. But it must not be allowed to divert the trial from the very purpose of a court system to adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom according to legal procedures.”...
“Although litigants do not surrender their First Amendment rights at the courthouse door, those rights may be subordinated to other interests that arise in this setting. For instance, on several occasions this Court has approved restriction on the communications of trial participants where necessary to ensure a fair trial for a criminal defendant.”) ... Here, alternative measures such as careful voir dire, jury sequestration, and cautionary jury instructions are sufficient to remedy only some of the potential prejudices that the government’s motion seeks to address."
So interestingly, she seems to signal here that the jury is going to be sequestered in order to safeguard the Integrity of these proceedings. "
"... it is necessary to impose certain restrictions on public statements by interested parties. Undisputed testimony cited by the government demonstrates that when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.... Since his indictment, and even after the government filed the instant motion, Defendant has continued to make similar statements attacking individuals involved in the judicial process, including potential witnesses, prosecutors, and court staff.... Defendant has made those statements to national audiences using language communicating not merely that he believes the process to be illegitimate, but also that particular individuals involved in it are liars, or “thugs,” or deserve death.... The court finds that such statements pose a significant and immediate risk that (1) witnesses will be intimidated or otherwise unduly influenced by the prospect of being themselves targeted for harassment or threats; and (2) attorneys, public servants, and other court staff will themselves become targets for threats and harassment. And that risk is largely irreversible in the age of the Internet; once an individual is publicly targeted, even revoking the offending statement may not abate the subsequent threats, harassment, or other intimidating effects during the pretrial as well as trial stages of this case.
"The defense’s position that no limits may be placed on Defendant’s speech because he is engaged in a political campaign is untenable, and the cases it cites do not so hold. The Circuit Courts in both United States v. Brown and United States v. Ford recognized that First Amendment rights must yield to the imperative of a fair trial. 218 F.3d 415, 424 (2000); 830 F.2d 596, 599 (1987). Unlike the district courts in those cases, however, this court has found that even amidst his political campaign, Defendant’s statements pose sufficiently grave threats to the integrity of these proceedings that cannot be addressed by alternative means, and it has tailored its order to meet the force of those threats. Brown, 218 F.3d at 428–30; Ford, 830 F.2d at 600. Thus, limited restrictions on extrajudicial statements are justified here. The bottom line is that equal justice under law requires the equal treatment of criminal defendants; Defendant’s presidential candidacy cannot excuse statements that would otherwise intolerably jeopardize these proceedings.
"Accordingly, and pursuant to Local Criminal Rule 57.7(c), it is hereby ORDERED that:
"All interested parties in this matter, including the parties and their counsel, are prohibited from making any public statements, or directing others to make any public statements, that target (1) the Special Counsel prosecuting this case or his staff; (2) defense counsel or their staff; (3) any of this court’s staff or other supporting personnel; or (4) any reasonably foreseeable witness or the substance of their testimony.
"This Order shall not be construed to prohibit Defendant from making statements criticizing the government generally, including the current administration or the Department of Justice; statements asserting that Defendant is innocent of the charges against him, or that his prosecution is politically motivated; or statements criticizing the campaign platforms or policies of Defendant’s current political rivals, such as former Vice President Pence."
She throws that in there because he's also a witness.
"In addition, the sealed version of the government’s Motion to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings, ECF No. 56, is DENIED as moot."
Signed Judge Tanya Chutkan.
So essentially, what she is doing, is she is saying, he can't threaten people. And he can talk about issues, he can comment on the issues, but he can't threaten people.
And I think, you know, the fact that you have to tell a former President of the United States, order him not to threaten people, is a sad state for this country. That anyone needs to be told that, but especially someone who's the former President of the United States. I don't know what bizarro world we live in, but that's where we are. And she signaled that she's going to sequester the jury, meaning they don't get to go home. She's going to protect them during the pendency of the trial so that they don't get any information outside the trial, just from what appears in court.
So it's very interesting that she didn't order that, but she addressed that those measures could protect the jurors. So she's clearly considering it. And Donald Trump is officially gagged.
So this is big news. Let's see if he can keep to it, and what will happen if he violates it. That will be interesting, because again, any other defendant would be held in contempt if he violates it, and incarcerated until the trial. Nobody's been willing or interested in doing that thus far, but that is how normal defendants would be treated. Let's see what consequence he would get if he violates it, or I should say, when he violates it.
So thank you for listening. Boogie and I thank you for listening. I'm Karen Freedman Agnifilo with LegalAF. Join me and my co-hosts Ben Meiselas and Michael Popok every Wednesday and Saturday for LegalAF. And boogie says 'goodbye.'
avid-Wynn: Miller or David-Wynn: Miller,[2] was an American tool and die welder,[3][4] pseudolegal theorist,[4] and leader of a tax protester group within the sovereign citizen movement.[5] A self-proclaimed judge, Miller is best known for creating "quantum grammar", a version of the English language to be used by people involved in judicial proceedings. He asserted that his constructed language, which is purportedly based on mathematics and includes unorthodox grammar, spelling, punctuation and syntax, constitutes the only "correct" form of communication in legal processes. His views also include a variation of the strawman theory. People seeking remedy with Miller's syntax in court have not met with success. His language is incomprehensible to most people and the pleadings that use it are routinely rejected by courts as gibberish.[1][4][6][7] Since Miller's death, his language has seen continued usage by other people within the sovereign citizen movement.[1]...
