CAROL ANDERSON: So what Jack Smith has laid out is the conspiracy to defraud the U.S. government, the conspiracy to basically subvert a political legal process for the United States. And the one that really attracts me is the conspiracy against rights, which is the right to vote, because underlying the Big Lie was the big lie of voter fraud. And that big lie of voter fraud was targeted at communities, at cities that have sizable Black and minority populations, and it was trying to delegitimize the votes of those American citizens.
And so, this is so streamlined because there are six — in that indictment, there are six unindicted co-conspirators, but they’re not on the charge itself. It is the United States of America v. Donald J. Trump. And so, that’s to make sure that this thing is clean, it’s smooth. There are none of these pieces like we have with Mar-a-Lago with multiple defendants, with classified documents, that this thing can go through. So, the defense’s claims of “we’re having an inordinate amount of discovery that we have to go through, of the documents and the witness testimonies that the prosecutor has amassed,” so much of that they already have from the January 6th committee hearings. What’s new, for instance, is Mike Pence, who went before the grand jury and told about his conversations with Trump.
So, Georgia was targeted — targeted hot, heavy and hard — by the Trump regime. So, you have that infamous phone call from Trump to Brad Raffensperger, who was the secretary of state, where Trump is saying, “All I need is 11,780 votes. Just find me 11,000 votes,” and Raffensperger pushing back, saying, “The data don’t support that. We don’t have those numbers.” And Trump is just demanding that Raffensperger overturn the will of the voters here in Georgia and just conjure up some votes and plug a number in there that says that Trump won the 16 Electoral College votes out of Georgia.
When that didn’t work, they also had the fake elector scheme, where you have — the legal electors are already meeting in the statehouse, as the law requires. Then, the fake electors then sneak into the statehouse on December 14th, and they’re meeting there, and they actually sign a document that says that they are the electors from the state of Georgia and that they then cast their 16 Electoral College votes for Donald J. Trump. And then they send that document to the federal judge, to the president of the Senate and to the head of the National Archives, giving the aura that this is legitimate, when it is actually illegitimate.
And then you have Mark Meadows coming into Georgia at a counting center as a recount is happening over absentee ballots. I mean, hard, hot and heavy pressure on Georgia to overturn the will of the voters.
And let me be really clear about the will of the voters. Ninety percent of Black voters in Georgia voted for Joseph Biden. Almost 70% of Hispanic voters in Georgia voted for Joseph Biden. And more than 60% of Asian American voters in Georgia voted for Joseph Biden. So this attempt to wipe out those votes is wiping out the votes of sizable blocs of minority voters, who did not vote for Donald J. Trump.
So, you have not only Eastman, but you also have Jeffrey Clark of the Department of Justice being warned that this attempt to override the election, overturn the will of the voters, would lead to folks being out in the streets, would lead to riots. And the response was, “Well, that’s what the Insurrection Act is for.” So, there was a willingness to use the U.S. military against American citizens who were protesting for their rights, protesting, fighting for this democracy, protesting because the will of the voters had been overturned by a cabal of co-conspirators, a cabal who were in league with Donald J. Trump. And so, that willingness to use violence to overturn democracy is — it just tells you how deeply embedded this drive was to keep him in power, and the disregard they had for the lives of American citizens, who withstood a pandemic, a deadly pandemic, to go and vote, who understood that democracy was on the line and were willing to do what they needed to do.
So, in terms of violence, I also have to talk about Rudy Giuliani coming down here to Georgia for three legislative hearings, where he spews — he and his team spew a bevy of lies about dead people voting, but particularly about Shaye Moss and Ruby Freeman, two Black poll workers in Fulton County at State Farm Arena, that Rudy Giuliani equated, made equivalent, with drug dealers, passing around USB ports as if they were heroin, as if it was heroin and cocaine, so linking election workers, Black election workers, with drug dealers. And then those two women receive enormous death threats, death threats that are so horrific that it causes Ruby Freeman to — the FBI warns her that she has to leave her home for protection. That’s the kind of violence that this kind of cabal was willing to generate in order to keep Donald Trump in power against the will of the voters. That’s why Georgia is so prominent in this discussion.
And this is — and so, this is the kind of terror that is reminiscent of what happened during Reconstruction that led to the KKK Act that Trump is charged with, because that kind of terror was the intimidation of Black people who were exercising their right to vote, the intimidation of Black people who believed that they were American citizens, the intimidation of Black people who were engaged in the electoral process. This is what was happening based on a lie, where Giuliani admits that he lied.
Even worse, I have to say, is that these lies about election fraud, about massive rampant voter fraud, becomes the basis for the voter suppression laws that many states, like Georgia, then put in place. So, you’ve got an incredible array of laws in place, pieces of those laws dealing with absentee ballots, dealing with drop boxes, dealing with mobile voting units, dealing with places like State Farm, that Fulton County was able to use to deal with the fact that it had to close 90 polling places, and so this was a way to provide a way for people to be able to vote. So, the state using Rudy Giuliani’s big lie and Donald Trump’s big lie to justify shutting down access to the ballot box to minority communities, because the vast number of drop boxes that were shut down after the passage of S.B. 202 were in the Atlanta metropolitan area. So it went from over a hundred drop boxes to fewer than 25 drop boxes.
So, this is why you have this — also this kind of massive pushback about Trump can’t get a fair trial in D.C., he can’t get a fair trial in Manhattan, he can’t get a fair trial in Fulton County, because of the Blackness of those spaces and because Black people and Black elected officials are seen as illegitimate. Think about Trump with birtherism, with Obama. That was an attack on Obama’s legitimacy, legitimacy as an American citizen, legitimacy as an elected political official.
When Blackness becomes illegitimate — so, I think about Mo Brooks, the congressman out of Alabama, who said that if we only count the legal votes, then Trump would be in his second term. So, those legal votes are white people’s votes. The illegal votes are those from African Americans. And so, therefore, folks like Fani Willis, folks like Judge Chutkan, folks like Tish James, folks like Alvin Bragg, they’re not legal, they’re not legitimate, so they can be discounted.
So, when you get a charge that says, “I want a change of venue from D.C. to West Virginia,” that is sending the signal about the illegitimacy of Black people as American citizens. This, again, is what happened after the Civil War, where the Ku Klux Klan rose up and said, “These aren’t American citizens. The 14th Amendment does not apply to them. The 15th Amendment does not apply to them. We can do to them whatever we want.” And that’s what you’re seeing replicated here in the 21st century.
Donald Trump seems to be inching closer every day to pretrial detention. Just days after he was placed on pretrial release in his criminal case in the District of Columbia and ordered not to threaten or intimidate the witnesses, he blasts one of the most sharply incriminating witnesses against him, his former Vice President Mike Pence. Judge Tanya Chutkan will very likely have something to say about that, in the form of a Show Cause Order.
Transcript
so friends, apparently Donald Trump thinks he gets to harass and threaten the witnesses against him with impunity. he doesn't. and he also seems to think he can insult his way out of having his criminal case tried in the District of Columbia. he can't. let's talk about that, because Justice matters. [Music] hey all Glenn kirschner here so friends let's take on two new developments in Donald Trump's criminal case in Washington D.C because just days after Trump was put on pre-trial release and ordered by the Magistrate Judge not to threaten or intimidate the witnesses Donald Trump does precisely that he lashes out at one of the most directly and sharply incriminating Witnesses one of the witnesses who will testify against him at trial one of the witnesses who will be called as a prosecution Witness his own former vice president Mike Pence here is the new reporting from CNN Headline Trump calls Mike Pence delusional in sharpest attack yet on his former vice president and that article begins former president Donald Trump on Saturday lashed out at Mike Pence his former vice president and GOP Presidential primary opponent calling him delusional and not a very good person
quote wow it finally happened little Mike Pence a man who was about to be ousted as Governor Indiana until I came along and made him VP has gone to the dark side Trump said in a truth social post quote I never told a newly emboldened not based on his two percent poll numbers Pence to put me above the Constitution or that Mike was too honest Trump added he's delusional and now he wants to show he's a tough guy so apparently Trump thinks he gets to trash with impunity one of the most sharply incriminating Witnesses against him can I make a prediction friends judge Tanya chutkin is going to have a little something to say about Donald Trump's decision to intimidate harass threaten the witnesses against him she'll probably have something to say about it in the form of what's called a show cause order when somebody's put on pre-trial release and the judge sets conditions the do's and don'ts of pre-trial release and the defendant engages in some of the don'ts a judge will typically order a show cause hearing and will require the defendant with his defense attorney's in tow to appear and show cause why the conditions of his release shouldn't be modified altered shouldn't become more restrictive or perhaps she'll order him to show cause why he shouldn't be detained pending trial now I suspect her opening Salvo with Donald Trump will be putting him on heightened restrictions perhaps some narrowly tailored restrictions on his speech and on his posts which he undoubtedly will violate probably later the same day that she imposes those heightened restrictions and what she may tell him when she imposes additional restrictions is I'm putting the keys to the jail cell in your hand defendant Trump and if you violate these conditions you will be detained pending trial so in a very real sense the keys to the jail cell will be in your hands that's what I suspect she will do give him enough rope now will she do it before the next scheduled court appearance on August 28th she might she might not I have a feeling the the threats are serious enough and the violations of his conditions of release are already obvious enough that she may haul him into court before August 28th or she may just wait until that first scheduled status hearing and take the matter up at that time but she's not going to let it go and she shouldn't let it go okay friends let's turn to the second development Donald Trump is trying to get his trial moved out of the District of Columbia and he thinks the way to accomplish that is by insulting the people of DC by berating the jury pool here is what Trump just posted
no way I can get a fair trial or even close to a fair trial in Washington D.C there are many reasons for this but just one is that I am calling for a federal takeover of this filthy and crime-ridden embarrassment to our nation where murders have just shattered the all-time record other violent crimes have never mean worse and tourists have fled the federal takeover is very unpopular with potential area jurors but necessary for safety greatness and for all the world to see so friends Donald Trump thinks that he can insult his way out of being tried in the District of Columbia he figures that if he insults the citizens of the District of Columbia then he can claim that he can't get a fair trial in the District of Columbia can you imagine if this Behavior resulted in a defendant being allowed to successfully change the venue of the trial by insulting the people in the city where you committed the crimes you know if that were the rule it would give every defendant and then an incentive to insult the jury pool in the city where they committed the crime so they could successfully get their trial moved to another city you know these tactical choices by Donald Trump are so bad it almost feels like he once again has Rudy Giuliani giving him legal advice one thing is becoming increasingly clear by the day Donald Trump is going down Donald Trump is going to be held accountable Donald Trump is going to be convicted for his crimes against the United States against the American people against our democracy he just is because Justice matters friends hold on tight we are getting there
Government's Opposed Motion to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings by Jack Smith, Special Counsel Department of Justice Sept. 15, 2023
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
DONALD J. TRUMP,
Defendant.
CRIMINAL NO. 23-cr-257 (TSC)
GOVERNMENT’S OPPOSED MOTION TO ENSURE THAT EXTRAJUDICIAL STATEMENTS DO NOT PREJUDICE THESE PROCEEDINGS
Since the grand jury returned an indictment in this case, the defendant has repeatedly and widely disseminated public statements attacking the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses. Through his statements, the defendant threatens to undermine the integrity of these proceedings and prejudice the jury pool, in contravention of the “undeviating rule” that in our justice system a jury’s verdict is to “be induced only by evidence and argument in open court, and not by any outside influence.” Sheppard v. Maxwell, 384 U.S. 333, 351 (1966) (quotations omitted). In accordance with the Court’s duty to “protect [its] processes from prejudicial outside interferences,” id. at 363, the Government requests that the Court take the following immediate measures to ensure the due administration of justice and a fair and impartial jury: (1) enter a narrowly tailored order pursuant to Local Criminal Rule 57.7(c) that restricts certain prejudicial extrajudicial statements; and (2) enter an order through which the Court can ensure that if either party conducts a jury study involving contact with the citizens of this District, the jury study is conducted in a way that will not prejudice the venire. The Government obtained the defendant’s position from counsel for the defendant, and he opposes this motion.
I. Background
As set forth in the indictment, after election day in 2020, the defendant launched a disinformation campaign in which he publicly and widely broadcast knowingly false claims that there had been outcome-determinative fraud in the presidential election, and that he had actually won. ECF No. 1 at ¶¶ 2, 4. In service of his criminal conspiracies, through false public statements, the defendant sought to erode public faith in the administration of the election and intimidate individuals who refuted his lies. ECF No. 1 at ¶¶ 2, 28, 31-32, 42, 44, 74, 97, 100, 104, 111. The defendant is now attempting to do the same thing in this criminal case—to undermine confidence in the criminal justice system and prejudice the jury pool through disparaging and inflammatory attacks on the citizens of this District, the Court, prosecutors, and prospective witnesses. The defendant’s conduct presents a “substantial likelihood of material prejudice” to these proceedings, and the Court can and should take steps to restrict such harmful extrajudicial statements. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075 (1991).
A. The Defendant Has a History of Inflammatory and Misleading Statements That He Knew or Should Have Known Would Cause Others to Harass and Harm Perceived Critics or Adversaries
The defendant has an established practice of issuing inflammatory public statements targeted at individuals or institutions that present an obstacle or challenge to him. In the period between the presidential election on November 3, 2020, and the congressional certification proceeding on January 6, 2021, the defendant trained his focus on the election system, including election officials and other individuals carrying out civic duties to implement fair elections in various states. As a result, the defendant engendered widespread mistrust in the administration of the election, and the individuals whom he targeted were subject to threats and harassment.
Examples of this pattern, from the indictment and the Government’s investigation, include the following:
• [DELETE] whom the defendant specifically targeted on the social media platform Twitter because [DELETE] had publicly stated that there was no evidence of election fraud. See ECF No. 1, Indictment, ¶ 42; https://twitter.com/realDonaldTrump/sta ... 1752656898. After the defendant’s tweet, [DELETE] observed an increase in the volume and severity of threats against him and his family. See House Select Committee to Investigate the January 6th Attack on the United States Capitol (“House Select Committee”), 6/13/22 Hr’g, at 1:47:14– 1:47:43 (“After the President tweeted at me by name, calling me out the way that he did, the threats became much more specific, much more graphic, and included not just me by name but included members of my family by name, their ages, our address, pictures of our home. Just every bit of detail that you could imagine. That was what changed with that tweet.”).1
• [DELETE] 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 [DELETE] for certifying the election. See Exhibit 1 at 3-6.
• [DELETE] during the 2020 election, who received threatening communications after [DELETE] certified the election and the defendant issued public posts about them. See Exhibit 1 at 26-27 ([DELETE]).
• [DELETE] who required additional police protection after the defendant targeted [DELETE] on Twitter for [DELETE] rejecting one of the defendant’s election challenges. See Exhibit 1 at 41-44.
The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets. On December 1, 2020, as the defendant was fueling an intense national atmosphere of mistrust and anger regarding the election, a Georgia election official held a widely televised press conference in which he pleaded with the defendant to stop, stating that if he did not, “Someone’s going to get hurt, someone’s going to get shot, someone’s going to get killed.”2 The defendant did not stop. Instead, he continued—even to the present—to attack individuals whom he knows already suffered threats and harassment as a result of his words. For instance:
• On November 17, 2020, the defendant fired [DELETE], his appointed director of the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency after [DELETE] made statements assuring the public of the integrity of the election. See ECF No. 1 ¶ 11(d). Later that month, after [DELETE] appeared on a news program and again stated publicly that the presidential election had been secure, the defendant attacked him on Twitter, and on November 30, an agent of the defendant publicly stated that [DELETE] “should be drawn and quartered. Taken out at dawn and shot.”3 This statement was so dangerous that the above-described Georgia election official mentioned it in his press conference when warning the defendant and others that such rhetoric would lead to violence.4 [DELETE] and his family received death threats and had to evacuate their home, and through a December 8, 2020 lawsuit put the defendant on explicit notice of the threats and harassment the defendant had caused.5 The defendant continued to publicly attack [DELETE] anyway.
• In 2020, the defendant and co-conspirators6 spread false accusations of misconduct against [DELETE] a Georgia election worker, and [DELETE]. As a result, [DELETE] were inundated by threats. See ECF No. 1 ¶ 26. [DELETE] subsequently described the pernicious threats and intimidation she endured as a result of these false allegations in an interview with the House Select Committee, which publicly released a transcript of the interview on December 29, 2022. See Select Committee Press Release, Release of Select Committee Materials (Dec. 29, 2022);7 Select Committee Transcript at 8 (“Do you know how it feels to have the President of the United States to target you? The President of the United States is supposed to represent every American, not to target one. But he targeted me . . . a small-business owner, a mother, a proud American citizen who stood up to help Fulton County run an election in the middle of the pandemic. . . . And, lo and behold, when someone as powerful as the President of the United States eggs on a mob, that mob will come. They came for us with their cruelty, their threats, their racism, and their hats. They haven’t stopped even today.”).8 Within ten days of the public release of [DELETE] interview transcript, the defendant—despite the known threats the election worker had received, and the established falsity of the claims of misconduct— publicly attacked [DELETE] again on Truth Social through a series of repeated false claims.9
• Likewise, the defendant recently renewed attacks on former Georgia Lieutenant Governor [DELETE], whose harassment the defendant inspired in the aftermath of the election. In December 2020, after Georgia’s Governor and Lieutenant Governor rejected the defendant’s calls to appoint the defendant’s illegitimate electors in Georgia, the defendant issued a post labeling [DELETE] a “Rino Never Trumper” who was “dumb or corrupt” and urged, “We need every great Georgian to call him out!” See https://twitter.com/realDonaldTrump/status/ 1336148836495069185. Thereafter, [DELETE] reported, he received death threats.10 Nonetheless, last month, on August 14, 2023, when it was publicly reported that [DELETE] had been called to testify before a state grand jury in Fulton County, Georgia, the defendant posted on Truth Social that “[h]e shouldn’t” testify. See https://truthsocial.com/@realDonaldTrum ... 7440060991.
The defendant continues these attacks on individuals precisely because he knows that in doing so, he is able to roil the public and marshal and prompt his supporters. As he acknowledged in a televised town hall on May 10, 2023, his supporters listen to him “like no one else.”11
B. Since the Indictment, the Defendant Has Deployed Misleading and Inflammatory Statements About this Case to Undermine Confidence in the Justice System and Prejudice the Jury Pool
The defendant made clear his intent to issue public attacks related to this case when, the day after his arraignment, he posted a threatening message on Truth Social:
Donald J. Trump @realDonaldTrump IF YOU GO AFTER ME, I'M COMING AFTER YOU! Aug 04, 2023, 4:16 PM
And he has made good on his threat. Since the indictment in this case, the defendant has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses. Like his previous public disinformation campaign regarding the 2020 presidential election, the defendant’s recent extrajudicial statements are intended to undermine public confidence in an institution—the judicial system—and to undermine confidence in and intimidate individuals—the Court, the jury pool, witnesses, and prosecutors. Below are select examples of the defendant’s disparaging and inflammatory Truth Social posts.
i. Posts Attacking, Undermining, and Attempting to Intimidate the Court and the Jury Pool
The defendant has posted repeated, inflammatory attacks on the judicial system, the Court, and the citizens of the District of Columbia who comprise the jury pool in this case. The defendant has made baseless claims—cited or inserted below—that the justice system is “rigged”12 against him; that the Court is “a fraud dressed up as a judge in Washington, D.C. who is a radical Obama hack” or is a “biased, Trump-hating judge”;13 and that he cannot get a fair trial from the residents of this “filthy and crime ridden” District that “is over 95% anti-Trump.”14
Donald J. Trump @realDonaldTrump The Obama appointed Judge in the FREE SPEECH Indictment of me by my political opponent, Crooked Joe Biden's Department of InJustice, shared professional ties at the law firm that worked for Energy Company Burisma, based in Ukraine, of which Hunter Biden and his associate were "proud" MEMBERS OF THE BOARD, and were paid Millions of Dollars, even though Hunter knew almost NOTHING about Energy. How much was the law firm paid? So Horrible. This is a CLASSIC Conflict of Interest! "GATEWAY PUNDIT" Aug 08, 2023, 4:47 PM
Donald J. Trump @realDonaldTrump THERE IS NO WAY I CAN GET A FAIR TRIAL WITH THE JUDGE "ASSIGNED" TO THE RIDICULOUS FREEDOM OF SPEECH/FAIR ELECTIONS CASE. EVERYBODY KNOWS THIS, AND SO DOES SHE! WE WILL BE IMMEDIATELY ASKING FOR RECUSAL OF THIS JUDGE ON VERY POWERFUL GROUNDS, AND LIKEWISE FOR VENUE CHANGE, OUT IF D.C. Aug 06, 2023, 9:26 AM
Donald J. Trump @realDonaldTrump NO WAY I CAN GET A FAIR TRIAL, OR EVEN CLOSE TO A FAIR TRIAL, IN WASHINGTON, D.C. THERE ARE MANY REASONS FOR THIS, BUT JUST ONE IS THAT I AM CALLING FOR A FEDERAL TAKEOVER OF THIS FILTHY AND CRIME RIDDEN EMBARRASSMENT TO OUR NATION, WHERE MURDERS HAVE JUST SHATTERED THE ALL TIME RECORD, OTHER VIOLENT CRIMES HAVE NEVER BEEN WORSE, AND TOURISTS HAVE FLED. THE FEDERAL TAKEOVER IS VERY UNPOPULAR WITH POTENTIAL AREA JURORS, BUT NECESSARY FOR SAFETY, GREATNESS, & FOR ALL THE WORLD TO SEE! Aug 06, 2023, 9:06 AM
ii. Posts Attacking, Undermining, and Attempting to Intimidate Prosecutors
Donald J. Trump @realDonaldTrump WE HAVE A DEPARTMENT OF INJUSTICE RIGGING THE ELECTION FOR CROOKED JOE BIDEN. UNLESS IT IS QUICKLY STOPPED, ALL FUTURE ELECTIONS WILL FOLLOW THE SAME PATH! Aug 21, 2023, 8:38 AM
Donald J. Trump @realDonaldTrump Deranged Jack Smith is going before his number one draft pick, the Judge of his "dreams" (WHO MUST BE RECUSED!), in an attempt to take away my FIRST AMENDMENT RIGHTS -- This, despite the fact that he, the DOJ, and his many Thug prosecutors, are illegally leaking, everything and anything, to the Fake News Media!!! Aug 07, 2023, 8:36 AM
Recently, the defendant has spread knowingly false accusations of misconduct against a prosecutor in the Special Counsel’s Office working on the case in which the defendant was indicted in the Southern District of Florida in June 2023, see United States v. Donald J. Trump, et al, Case No. 9:23-cr-80101-AMC, ECF No. 30 at 1 (S.D. Fla. June 21, 2023), and connected those false accusations to this casein the District of Columbia by calling the Court a “biased, Trump Hating Judge,” as shown below. In his posts on this topic, the defendant repeatedly makes the knowingly false claim that Special Counsel’s Office prosecutors went to the White House in advance of the defendant’s June 2023 indictment for improper reasons.
Donald J. Trump @realDonaldTrump Deranged Jack Smith & his team of Thugs, who were caught going to the White House just prior to indicting the 45th President of the United States (an absolute No No!), have been working on this Witch Hunt for almost 3 years, but decided to bring it smack in the middle of Crooked Joe Biden's Political Opponent's campaign against him. Election Interference! Today a biased, Trump Hating Judge gave me only a two month extension, just what our corrupt government wanted, SUPER TUESDAY. I will APPEAL! Aug 28, 2023, 2:37 PM
Donald J. Trump @realDonaldTrump It has just been reported that aides to TRUMP prosecutor, Deranged Jack Smith, met with high officials at the White House just prior to these political SleazeBags Indicating me OVER NOTHING. If this is so, which it is, that means that Biden and his Fascist Thugs knew and APPROVED of this Country dividing Form of Election Interference, despite their insisting that they "knew nothing." It's all a BIG LIE, just like Russia, Russia, Russia, & not knowing about son's business dealings. DISMISS CASE! Aug 28, 2023, 8:07 AM
In fact, as the defendant well knows from the formal FBI FD-302 interview report and agent notes that he received in discovery on June 21, 2023, in the Southern District of Florida case, on March 31, 2023, the Special Counsel’s Office prosecutor conducted a routine investigative interview of a career military official at that official’s duty station—the White House.The defendant’s objective in spreading a knowing lie to the contrary—including by re-posting others’ Truth Social posts naming the prosecutor and repeating the lie16—is an attempt to prejudice the public and the venire in advance of trial.
With that same goal, the defendant has posted misleading claims on Truth Social to insinuate misconduct by the Special Counsel’s Office in pursuing ordinary court-approved process or seeking the indictment in this case. Regarding a search warrant and non-disclosure order that the Government received from the court consistent with the law, for instance, the defendant falsely claimed that the Special Counsel’s Office broke into his former Twitter account17 in a “major ‘hit’ on my civil rights” and queried whether the Special Counsel directed the Select Committee to “DESTROY & DELETE all evidence.”18 And on August 2, the defendant posted a quote alleging, without any basis, that the indictment that a federal grand jury in this case returned had been directed by the sitting president: “‘Joe Biden directed his Attorney General to prosecute his rival. This is not an independent Justice Department, this is not an independent special counsel. This is being directed by the Commander-in-Chief.”19 Through such posts, the defendant is attempting to submit his false and inflammatory claims to the public and jury pool outside of court, because he knows that any such claims made before the Court in the form of motions to suppress or of vindictive prosecution will fail because they must be supported by evidence—of which there is none.
iii. Posts Bolstering or Attacking and Attempting to Intimidate Witnesses
The defendant has also posted publicly about individuals whom he has reason to believe will be witnesses in this trial. For instance, on August 30, the defendant posted a video attacking the former Attorney General of the United States, a potential witness in this case, on the very subject of his testimony.20 Steadily since indictment, the defendant has publicly bolstered certain prospective witnesses in this case, while attacking others, in an effort to influence the public’s and the jury pool’s impressions of potential witnesses outside of the courtroom. Examples of such posts are below.
Donald J. Trump @realDonaldTrump The greatest Mayor in the history of New York City was just ARRESETED in Atlanta, Georgia, because he fought for Election Integrity. THE ELECTION WAS RIGGED & STOLLEN. HOW SAD FOR OUR COUNTRY. MAGA! Aug 23, 2023, 5:00 PM
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 his V.P., has gone to the Dark Side. I never told a newly emboldened (noted based on his 2% poll numbers!) Pence to put me above the Constitution, or that Mike was "too honest." He's delusional, and how 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, 5:20 PM
C. The Defendant’s Public Posts Regarding this Case are Reasonably Likely to Prejudice the Jury Pool
The defendant’s relentless public posts marshaling anger and mistrust in the justice system, the Court, and prosecutors have already influenced the public. 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. See United States v. Shry, Case No. 4:23-mj-1602, ECF No. 1 at 3 (Criminal Complaint) (S.D. Tex. August 11, 2023). In addition, the Special Counsel has been subject to multiple threats, and the specific Special Counsel’s Office prosecutor that the defendant has targeted through recent, inflammatory public posts has been subject to intimidating communications. Given the defendant’s history described above and the nature of the threats to the Court and to the Government, it is clear that the threats are prompted by the defendant’s repeated and relentless posts. To the extent that the defendant’s public posts reach the general public, they also reach the jury pool for this trial.
In addition, if unfettered, the way that the defendant is known to use public statements to intimidate individuals could affect potential jurors. A recent incident in this District illustrates the potential issue. Last week, in a trial against a self-professed supporter of the defendant who claimed to have been at the United States Capitol on January 6 because of the defendant’s tweets, the jury sent the court a note expressing concern that the trial defendant (Fellows) might have information about the identity of jurors. See United States v. Brandon Fellows, Case No. 21-cr- 83 (TNM) at ECF No. 141, Note (“We wanted to confirm that the defendent [sic] does not have any personal information on individual jurors, since he was defending himself. Includes name, address, etc.”). This demonstrates the need to protect potential jurors from fear of threats and harassment that stem from the defendant’s disparaging and inflammatory public statements.
II. The Court Should Ensure That Public Statements by the Defendant and His Agents Do Not Prejudice These Criminal Proceedings
The defendant’s repeated, inflammatory public statements regarding the District of Columbia, the Court, prosecutors, and potential witnesses are substantially likely to materially prejudice the jury pool, create fear among potential jurors, and result in threats or harassment to individuals he singles out. Put simply, those involved in the criminal justice process who read and hear the defendant’s disparaging and inflammatory messages (from court personnel, to prosecutors, to witnesses, to potential jurors) may reasonably fear that they could be the next targets of the defendant’s attacks. To protect the due administration of justice in these proceedings and ensure the impartiality of the venire, the Government proposes two narrowly tailored orders that impose modest, permissible restrictions on prejudicial extrajudicial conduct by the parties and counsel.
A. The Court Should Issue an Order Pursuant to Local Criminal Rule 57.7(c) That Prohibits Certain Narrowly Defined Statements
The Court has recognized its “obligation to prevent what the Supreme Court called in Sheppard v. Maxwell ‘a carnival atmosphere of unchecked publicity and trial by media rather than our constitutionally established system of trial by impartial jury.’” 8/11/23 Hr’g Tr. at 71. To fulfill that obligation, the Court may “take such steps by rule and regulation that will protect their processes from prejudicial outside interferences,” including by “proscrib[ing] extrajudicial statements by any lawyer, party, witness, or court official which divulge[s] prejudicial matters.” Sheppard v. Maxwell, 384 U.S. 333, 361 (1966). Consistent with these principles, the Court should enter an order pursuant to this District’s Local Criminal Rules imposing limited restrictions on certain extrajudicial public statements by the parties and attorneys in this case.
Local Criminal Rule 57.7 permits the Court, “[i]n a widely publicized or sensational criminal case,” upon a motion or sua sponte, to “issue a special order governing such matters as extrajudicial statements by parties, witnesses and attorneys likely to interfere with the rights of the accused to a fair trial by an impartial jury.” LCrR 57.7(c); see also LCrR 57.7(b)(1), (3) (prohibiting pre-trial, public statements by lawyers that might prejudice the due administration of justice). Courts in this District have exercised their authority under Local Criminal Rule 57.7(c) to issue orders restricting statements of counsel and parties in appropriate cases. See United States v. Stone, No. 19-cr-18, ECF No. 36 at 3 (D.D.C. Feb. 15, 2019) (ordering, inter alia, attorneys to “refrain from making statements to the media or in public settings that pose a substantial likelihood of material prejudice to this case”); United States v. Butina, No. 18-cr-218, ECF No. 31 at 2 (D.D.C. Sept. 12, 2018) (ordering “all interested participants, in the matter, including the parties, any potential witnesses, and counsel for the parties and witnesses . . . to refrain from making statements to the media or in public settings that pose a substantial likelihood of material prejudice to this case”). Other jurisdictions are in accord. See United States v. Brown, 218 F.3d 415, 428 (5th Cir. 2000) (upholding district court order restricting extrajudicial statements, and reasoning that the rationale of Gentile applies equally to attorneys and parties).
The Government seeks a narrow, well-defined restriction that is targeted at extrajudicial statements that present a serious and substantial danger of materially prejudicing this case. The Government’s proposed order specifies that such statements would include (a) statements regarding the identity, testimony, or credibility of prospective witnesses; and (b) statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating. See Exhibit 2. The Government’s order also specifies that, consistent with other clarifications in Local Criminal Rule 57.7, the order is not intended to prohibit quotation or reference to public court records of the case or the defendant’s proclamations of innocence. Id. This proposal is consistent with the permissible balance approved by the Supreme Court in Gentile, 501 U.S. at 1074-75, and specific enough to provide adequate notice to the parties and counsel of prohibited statements.
The defendant’s past conduct, including conduct that has taken place after and as a direct result of the indictment in this case, amply demonstrates the need for this order. As illustrated by the examples discussed above, the defendant’s statements reasonably could have a material impact on the impartiality of the jury pool while simultaneously influencing witness testimony. The defendant’s repeated posts that he cannot receive a fair trial from this Court or from a jury of his peers in this District are substantially likely to undermine confidence in the justice system, affect the jury pool, or otherwise prejudice the due administration of justice. His misleading statements regarding the Special Counsel’s Office and its investigation are designed to do the same. And his targeting of specific witnesses seeks to either bolster or impeach witnesses not before this Court but instead in the court of public opinion before trial begins.
A supplemental order that extends some of the prohibitions that apply to defense counsel to the defendant himself is particularly warranted. Shortly after the indictment in this case was unsealed, the defendant’s lead counsel began a series of lengthy and detailed interviews in which he potentially tainted the jury pool by disseminating information and opinions about the case and a potential witness and described in detail legal defenses that he plans to mount, including defenses that may never be raised in court or that may be rejected by the Court before ever reaching the jury.21 Many of these statements by lead counsel violated Local Criminal Rule 57.7(b), which prohibits attorneys from releasing public extrajudicial statements regarding, among other things, “the identity, testimony, or credibility of prospective witnesses” and the “merits of the case or the evidence in the case.” In the time since the Court admonished the parties and counsel at the hearing regarding the motion for a protective order on August 11, 2023, see 8/11/23 Hr’g Tr. at 72, the Government is unaware of lead counsel making any additional public statements of this nature. The defendant, however, has persisted. The Court should therefore enter the order proposed by the Government to ensure the defendant does not undermine the integrity of these proceedings by disseminating statements defense counsel cannot make.
B. The Court Should Issue an Order That Prohibits Contacting the Citizens of This District to Conduct Jury Studies Without First Notifying and Receiving Authorization from the Court
The Court has already taken steps to protect the venire related to polling of prospective jurors related to this case. At the status hearing on August 28, 2023, after the Government raised the issue of jury studies, and the defense suggested they may “sooner rather than later” conduct outreach to the jury pool to gather information for a potential change of venue motion, the Court instructed the defendant to notify the Court ex parte before conducting any polling in the District of Columbia in connection with a potential motion to change the trial venue. See 8/18/23 Hr’g Tr. at 59-60. In so doing, the Court noted that such polling “might affect the same jury pool you are claiming is not fair” and might “actually affect their ability to render a fair verdict by virtue of the kinds of questions you’re asking, because questions can be phrased in all kinds of ways.” Id.
Because of the potential prejudice that polling may cause, the Government respectfully requests that the Court set forth a process to review efforts by either party to engage in contacts with members of the jury venire in this District undertaken for the purpose of discussing case-specific facts, including any pretrial survey, poll, focus group, or similar study (hereinafter, “jury study”).22 Specifically, the Court should (1) require either party to notify the Court before the party—or any individual or entity acting at the party’s direction or under its control—undertakes any jury study in this District; (2) require the completion of any such jury study no later than 30 days before jury selection begins; (3) require either party to submit the proposed questions and methodology ex parte for the Court’s review before undertaking any jury study; and (4) require filing under seal of the name and address of each participant contacted in any jury study at least two weeks before jury selection. A proposed order is attached as Exhibit 3.
Such an order is consistent with the Court’s inherent authority to protect the “integrity and fairness” of the judicial system through preventing “comments that are likely to prejudice the jury venire.” Gentile, 501 U.S. at 1075. Though pretrial surveys are neither inherently suspect nor uncommon in trial litigation, see Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 717 (Tex. 2020); see also Ellen Kreitzberg & Mary Procaccio-Flowers, The Law, Art & Science of Selecting a Jury § 3:3 (2022) (noting the utility of pretrial surveys), courts nonetheless maintain the authority to supervise and oversee their use. See United States v. Collins, 972 F.2d 1385, 1398 (5th Cir. 1992) (district court reviewed materials related to Government’s polling to determine whether it had compromised the integrity of jury selection); Brewer v. Lennox Hearth Prod., LLC, 546 S.W.3d 866, 877 (Tex. App. 2018) (finding that pretrial surveys are “subject to review by the presiding court in order to determine whether anything was done to compromise the integrity of the jury selection process”), rev’d on other grounds, 601 S.W.3d 704 (Tex. 2020). If questions in a pretrial survey are worded to advocate for a certain party’s position, or test the effectiveness of a party’s message in addition to gathering information, they can have a potentially prejudicial effect. See Brewer, 601 S.W.3d at 726 (“A campaign of disinformation, in whatever form, undermines the sanctity of the judicial process and is inimical to the constitutional promise of a fair and impartial jury trial.); cf. United States v. Haldeman, 559 F.2d 31, 64 n.43 (D.C. Cir. 1976) (finding that the district court did not err in relying more on comprehensive voir dire than “a poll taken in private by private pollsters and paid for by one side”).
To guard against the damage that a pretrial survey could inflict on the venire—whether intentionally or not—this Court should exercise its inherent authority here. At least one district court has a standing order that requires the parties to provide advance notification “[w]hen the party decides that it will, or is likely to, commission” a pretrial mock trial, focus group, or similar study of the jury venire. See The Honorable Ron Clark, E.D. Tex. Standing Order RC-47 (Aug. 11, 2010). An order of this type “do[es] not prohibit use of surveys as a litigation tool” but instead “regulate[s] the practice . . . by (1) requir[ing] pretrial notice of intent to conduct such a study; (2) requir[ing] disclosure . . . of the methodology; (3) temporally limit[ing] proximity to trial; and (4) requir[ing] in camera submission of each participant’s name and address in advance of the pretrial conference.” Brewer, 601 S.W.3d at 726 (emphasis in original). The Government has attached a proposed order that contains these features.
III. Conclusion
Consistent with its obligations to guard the integrity of these proceedings and prevent prejudice to the jury pool, while respecting the defendant’s First Amendment rights, the Court should enter the proposed orders imposing certain narrow restrictions on the parties’ public statements regarding this case and governing any jury studies the parties may undertake.
Respectfully submitted,
JACK SMITH Special Counsel
By: ___________ /s/Molly Gaston Molly Gaston Thomas P. Windom Senior Assistant Special Counsels 950 Pennsylvania Avenue NW Room B-206 Washington, D.C. 20530
5 See Case No. 484243V (Montgomery County, Maryland Circuit Court), Complaint (Dec. 8, 2020).
6 A court in this District recently entered a default judgment against one of the defendant’s co-conspirators in a lawsuit filed against him by for his defamatory false claims. See 21-cv-3354 (BAH), ECF No. 93, Order (Aug. 30, 2023).
Special Counsel’s motion to STOP Trump’s RELENTLESS ATTACKS on potential jurors, the Judge, the prosecution, and witnesses citing his own statements, has just been unsealed today. Michael Popok of Legal AF unpacks it & explains how the government wants to finally GAG TRUMP and his lawyers and prevent the continued “circus” that he has created.
Transcript
This is Michael Popok, LegalAF.
Justice doesn't sleep on a Friday. We've got a motion that was filed by Jack Smith, we just got our hands on. Here it is, because it's been unsealed by Judge Chutkan, related to Donald Trump's continued campaign of harassment of potential jurors, jurors, the Judge in this particular case, prosecutors, member of the prosecution team, and everybody else. His unbridled attacks have been accumulated by Jack Smith, and put into this motion. to stop him from making continued extra judicial statements, outside the courtroom, to prejudice these proceedings.
And the fundamental basis is found on page 14 of the motion, which has just been unsealed today. It's been sitting on the docket since the 5th of September. We've been waiting patiently to see what it looked like. And just today, in another order issued by Judge Chutkan, after she went through the analysis of why the motion that was first sealed by the Government should now be unsealed, so that the public can see it, so they can have confidence in the justice system and the judicial system. We're just getting it now, and so that we can unpack it for you here.
And right on page 14 is a Supreme Court quote, that sums up what Jack Smith, the special counsel, is trying to do by way of this motion, and the Judge should do. Because it points out that Donald Trump is the ringmaster of a, and quoting from the case of Sheppard v. Maxwell, "a carnival atmosphere of unchecked publicity and trial by media rather than our constitutionally established system of trial by an impartial jury."
That is exactly -- that quote from that Sheppard case, from the United States Supreme Court -- is exactly the reason that the Judge should ultimately grant the request by the Department of Justice to enter two narrow orders in this case, to get Donald Trump under control. Never going to be able to gag him, because of certain First Amendment rights, and other rights that a defendant has, but you can limit what he says. And so what the Government wants is two things from the Judge, and then I'll tell you what evidence they provide, about Donald Trump, from his own fingertips on social media, from his own mouth at rallies and interviews, that they use, of course, against him, as we always said they would, here in this particular motion, including violent attacks on Judge Chutkan herself, that actually led to somebody making an assassination proposal -- you know, an attack on the Judge -- by leaving a voicemail message on her chambers, saying that she was going to assassinate the Judge, as a byproduct of Donald Trump's behavior.
And I'll tell you, as a little bit of a teaser, that the way that Jack Smith does it in the motion is masterful. Because he links, all of this attempt by Donald Trump to undermine the public's respect for and confidence in the justice system, it's the exact same campaign that Donald Trump led, that's mentioned, and it is the focus of the indictment, to undermine the election process. This linkage between all he does is undermine the institutions of our society. And we're just seeing Chapter 2 of that same playbook. It is brilliant. A brilliant way to both remind the Judge of the indictment, ring that bell once again, and then all the bad things that Donald Trump has done since the last time they were all in court together.
The two narrow things that they want, which this Judge should grant, is under a local criminal Rule 557.7. The Government wants the Judge to restrict Donald Trump and his lawyers, from saying anything about the parties in the case, the witnesses, and the attorneys, which would likely interfere with the rights of the accused, Donald Trump himself, to get a fair trial by an impartial jury. Stop trying to pollute the potential jury, which is referred to in the business as the "jury venire," the future panel from which the jury will be selected, because it's against your own interest, Donald Trump. Because all you're doing is corrupting the justice system. You think you're speaking to that future juror who's going to be MAGA, and hang the jury. All you're doing is making the jury afraid of you. And therefore, that's a bad thing for your Sixth Amendment rights. And you'll have no one to blame but yourself.
So that's the first order that this motion is looking for. As I like to train my associates, and my attorneys, I tell them, "get to the point." Because the Judge in a hearing wants to know two things, and is tapping their foot, waiting to hear what they are: 1) Why are you here? What is the motion you're on, and 2) What do you want? What do you want me to do in response to that motion? So that's the first thing: the order to limit Donald Trump from attacking continuously, or at all, parties, witnesses in the case, potential witnesses, and attorneys, mainly the prosecutors.
They left out the Judge, but they do mention at length all the attacks on Judge Chutkan herself, including the very ugly social media post by Donald Trump himself.
And the second thing they want is a little complicated, but I'm gonna unpack it here for you on this particular hot-take. It has to do with what you're able to do to create what's called a "mock jury," to practice your case, whether you're the prosecution or the defense, in front of potential jurors. So in order to do that, you generally are talking to people who could ultimately be in the jury pool. And so they want a limitation on how and when and with or without authority or permission, the lawyers for Donald Trump and others, can conduct "jury studies." Right? Figuring out what the best juror would be. There's a whole body of work, there's a whole cottage industry, devoted to what we call in the litigation trial business "Jury Science." How do juries make up their mind? What's the best combination of jurors to have in the room, demographically, age, religion, background, race, you know, gender, whatever it is? What is the best combination? You know, some cases the jury study may say an all-female jury would be great. Some studies might say an all-male jury, or an older jury, or one that has people that used to be in law enforcement. You know, we could do this all day long. And that's Jury Science.
And so, in order to be ready to pick your jury, right, you either hire a jury consultant -- which Donald Trump will likely do -- to help him pick that jury, because you pick a jury. There's a panel that's brought down, it is interviewed and questioned in a process called voir dire, right, where you're asking the jury the potential jury questions, and then there's a selection process where you get it down to 12. It's 12 here. It could be 9 in other cases, 6, 9, or 12, depending upon the court that you're in, for jurors in the box, with alternates.
And then you have what's called "peremptory challenges," which are, "I get five, or six, or eight, challenges on my side, just because." I can't do it on basis of race. I can't get rid of all the black and brown people, which I know Donald Trump will try to do. Because there is Supreme Court law precedent that says you can't. But you can use it like, "No, no, I'm not sure," after the questioning. "I liked potential juror number nine." And so each side gets their peremptories.
And then you get what's called, there are "for cause" challenges, or excusals of jurors, usually by the Judge, because the person just can't be fair and impartial. Something's happened in their life. They have made up their mind about Donald Trump one way or the other, and so they get excused.
And then you get to your jury. And it takes a couple of weeks, or it could take, I'd say in the Federal court, take about a week, or a little bit less, to get your jury in the pool, in the box.
So the Federal Prosecutors don't want Donald Trump using, under the guise of conducting a jury study, to pollute the jury, and the potential jury, and put statements out into the public. So they want anything that he does related to jury selection and consulting to be approved by the Judge in advance.
These are pretty mild, by the way. They're not seeking a gag order. Everybody wants a gag order: "Stop Donald Trump from talking at all. Stuff a sock in him." Okay. I would like that too. But it's not going to happen. And they're not even asking for it. Yet, Donald Trump decided to oppose this motion, because he doesn't want to stop raising money on the backs of lies. And as Jack Smith said in his motion, he -- Donald Trump -- knows that for every statement he makes, there's a reaction. For every action, there is a reaction, right? There are attacks on witnesses. There are attacks on people that he sees as his enemies. And who he's convinced his followers to see as their enemies. And that has to stop.
And this was basically also an excuse for the Department of Justice to put together all of the social media, and comments made by Donald Trump, that went after and attacked people.
Let me read to you now, from the motion itself, because it's so important. Especially how the Government sees the case. This could almost be taken from the Opening Statement of the Government when they start the trial of Donald Trump. And this is in the first paragraph of page two of their motion.
"As set forth in the indictment, after election day in 2020, the defendant" -- always Donald Trump -- "launched a disinformation campaign in which he publicly and widely broadcast knowingly false claims that there had been outcome-determinative fraud in the presidential election, and that he had actually won. In service of his criminal conspiracies, through false public statements, the defendant sought to erode public faith in the administration of the election and intimidate individuals who refuted his lies. The defendant is now attempting to do the same thing in this criminal case—to undermine confidence in the criminal justice system and prejudice the jury pool through disparaging and inflammatory attacks on the citizens of this District" -- the District of Columbia, "the Court," -- Judge Chutkan, "prosecutors, and prospective witnesses. The defendant’s conduct presents a “substantial likelihood of material prejudice” to these proceedings, and the Court can and should take steps to restrict such harmful extrajudicial statements."
That sounds like an Opening Statement.
They then go, in the next section of the motion, to walk the court through Trump's history of inflammatory and misleading statements, that he knew, or should have known, would cause others, to harass and harm his critics, or adversaries.
And then they talk about all of the people, right? Georgia election officials, who got death threats after Trump identified them on his then Twitter platform. Where, you know, one tweet changed their life for the worse. And that was testimony to the House Jan 6 Committee that is reproduced. although redacted. [Holds up document] That blackout is in the document because the Court has seen fit to have certain parts of this redacted so that there's not more doxing of these particular people.
Also talking about how an election worker had their home address placed on the Internet. We know that is likely. I hate to doxx them, but they're public about this. We know Ruby Freeman and Shaye Moss, who have a defamation suit against Rudy Giuliani, are people that have complained about this very thing. And they required additional police protection.
It goes on to say that Trump knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.
And it talks about a press conference held in Georgia by the then-Secretary of State, where the man pleaded for Trump to stop, "because somebody was going to get killed." That's a direct quote.
There's also reference to Chris Krebs, the head of cyber security for Donald Trump, that as soon as he said it was the most secure election in the history of all U.S. elections, Donald Trump fired, and then attacked him. And the same thing as we said with Ruby Freeman and Shaye Moss.
And the motion goes on and takes a quote from Donald Trump, at his own town hall just this past May, the one on CNN, where he said and they quote from Donald Trump, "My supporters listen to me like no one else." That's the point. And the fact that you're using third parties, like you did to attack the Capitol, like you did to harass your adversaries and enemies, like you're using, and the puppet master for the MAGA Congress, you're doing it again for the justice system, and for our judicial process, just as you did for our election process.
And then he goes on to remind the judge -- not that she needs to be reminded -- that he has been attacking the court system, and her particularly, as a member of Marxist leftists. "Everybody's anti-Trump in the District of Columbia. I can't get a fair trial in the District of Columbia." And so on. "And it's all rigged by Joe Biden."
Then they go on to talk about all the attacks on the Special Counsel's office, including lies about the Special Counsel's office, and their role in this case, and making up claims that they were not independent from Joe Biden, Merrick Garland, when they are.
And they cite in the motion, chapter and verse, where Donald Trump has lied, again, in trying to associate the Special Counsel with Joe Biden particularly.
Then they talk about the witnesses that Donald Trump has gone after: Mike Pence being mercilessly attacked on Truth Social, and in rallies, by Donald Trump.
Bolstering testimony of witnesses is also a bad thing. That's the opposite of attacking. That's where you want to increase the credibility of a particular witness. It's called "bolstering." And so you say things like, about Rudy Giuliani, "he's the greatest mayor in the history of New York City, and he was just arrested. The election was rigged and stolen." So now you're bolstering testimony while you're tearing down the future testimony of other people in the minds of the future jury. And then they turned to Judge Chutkan. Even though they don't -- it's interesting, they don't ask for an order to protect her, because they, you know, she's in a black robe. However, we know we live in a society where crazy people do bad things, including assassinate judges and their families. And that's happened in recent history. And so they remind the judge that there's been racist death threats lodged against her since he started tweeting about his relentless public posts -- this is their quote -- "marshalling anger and mistrust in the justice system and the court." And then in particular they said, even the jury is scared of him. Because they pointed to one of the recent Jan. 6 cases, in which the jury -- and we did a hot take on this, Ben Meiselas, right here on the Meidastouch Network -- in which the jury wrote a note to the judge and said that they were scared of the defendant because he may have their home addresses.
In addition, if unfettered, the way that the defendant is known to use public statements to intimidate individuals could affect potential jurors. A recent incident in this District illustrates the potential issue. Last week, in a trial against a self-professed supporter of the defendant who claimed to have been at the United States Capitol on January 6 because of the defendant’s tweets, the jury sent the court a note expressing concern that the trial defendant (Fellows) might have information about the identity of jurors. See United States v. Brandon Fellows, Case No. 21-cr- 83 (TNM) at ECF No. 141, Note (“We wanted to confirm that the defendent [sic] does not have any personal information on individual jurors, since he was defending himself. Includes name, address, etc.”). This demonstrates the need to protect potential jurors from fear of threats and harassment that stem from the defendant’s disparaging and inflammatory public statements.
So this is the milieu. This is the stew of animus and venom that Donald Trump promotes. And in a way, he's undermining his own ability. That's the point of getting a fair trial. Because for every Trumper that he's stirring up, he's turning off another potential juror who needs to be fair and impartial in reviewing the evidence that's presented in the courtroom. Because it's not supposed to be a carnival-like atmosphere -- back to the case that started this hot take -- it's supposed to be one of fair justice in a courtroom.
And then they reminded, at the end of their motion, that orders of the judge, and admonitions by the judge to the defense, works. They cite the fact that before John Lauro, the lawyer for Donald Trump, was admonished by the judge in a protective order, he was out on the Sunday morning talk show circuit, hitting five or six talk shows on one Sunday morning, doing everything he's not supposed to do: making statements outside the court, in violation of local rules, about the trial, the case, the defenses, the evidence, and the witnesses. You're not allowed to do that. And they said, "Here's an example, Judge. When you called John Lauro out on the carpet, and told him to stop it, he stopped. In fact," the Government said, "we've searched. We haven't found one more word from John Lauro since you, wearing the black robe, told him to cut it out. Do the same thing for Donald Trump. Because if you don't, you see that if you give him a fingernail, he takes a nation." That's where we're at with Donald Trump.
That motion is now unsealed, even though, again, just to remind everybody of the procedure, although it was filed a long time ago -- it's now been docketed as document number 57, if you're playing the Donald Trump on trial home game -- today, 19 pages. It had originally been filed sealed, but not redacted, with black lines, back on the 5th of September, and then the Judge issued an order in which she analyzed the factors in which the public has a stake in learning about public information, but she also balanced that against certain non-public information that the public doesn't need to know about, and isn't really relevant to the trial. And that's why we got some very limited redactions. So limited that we can easily figure out the names of people that have been redacted. But that's how Judge Chutkan runs her chambers.
She is given the other side now, Donald Trump's side, a briefing schedule. They can oppose this motion -- which we know they will. They have until the end of the month. Then there's going to be a reply brief by the Government. And a likely hearing. And then sometime in October, the Judge is going to make a ruling. In the meantime, there is no order in place. But every time Donald Trump opens his mouth, or runs his fingers, or has a surrogate do something, it's going to be updated, I assure you, with an amended supplemental motion by the Government submitting additional evidence that he just won't stop. Because we know Donald Trump won't be chastened by this. He won't be like, "Oops, I better tone it down for the next four weeks until the Judge rules." He's not. If we know him, he's crazy. He's gonna go the opposite way. He's going to make it worse. As I've said in prior hot-takes, this is like the little boy that puts his hand on the stove and when that doesn't work, he puts his entire face on the stove.
So Donald Trump's going to keep testing, testing, pressurizing, pressurizing, intimidating. And then all that Jack Smith can do is just continue to build his case of evidence, linking it so elegantly, to the actual indicted acts. The undermining of the election system is the exact same thing as the undermining of the justice system, as we're seeing right here.
I'm covering this kind of stuff on hot-takes just like this one, only on the Meidastouch Network, exclusively right here on this YouTube channel. Help them, MeidasTouch, get to 2 million free subscribers. They're so close. Help them cross that threshold sometime this Fall. It's really really important for democracy.
And then we put all of these kind of hot-takes together -- or at least the stories, we curate them -- in a podcast we call LegalAF. It's what you think. It's every Wednesday and Saturday, also exclusively on the Meidastouch Network. I do it on Wednesdays with my co-anchor, a pro, a former prosecutor, Karen Freedman Agnifolo, on Saturdays, with one of the co-founders of Meidastouch Network, Ben Meiselas. And we put it right here on YouTube. We do It live on Saturdays and Wednesdays. And then you can pick it up on audio. And if you want to find the entire body of all the work that MeidasTouch does, including the legal and political analysts like me, Karen, and Ben, go to their new website, Meidastouch.com. Go over and you'll get all the original content that's there, that's written by like a whole newsroom that's now been developed. It's like the old newsroom days, like the Washington Post, the New York Times, but by MeidasTouch. And then all of our audio content by all of our contributors, including the LegalAF.
Until my next hot-take, this is Michael Popok, LegalAF.
Opinion and Order by Judge Tanya S. Chutkan USA v. Donald Trump, Criminal Action No. 23-257 (TSC) September 15, 2023
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
The government has requested leave to file a motion under partial seal—specifically, to file an unredacted version of that motion under seal, and to file a redacted version on the public docket. ECF No. 47. As set forth below, the government has carried its burden of justifying the limited redactions it proposes, and the court will grant its request.
The D.C. Circuit has recognized the “important presumption in favor of public access to all facets of criminal court proceedings.” United States v. Hubbard, 650 F.2d 293, 317 (D.C. Cir. 1980). In assessing a request to file a submission under seal, a court must weigh six factors to determine whether that presumption is outweighed by the need to seal the materials at issue:
(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.
E.E.O.C. v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996). As the moving party here, the government must “come forward with specific reasons why the record, or any part thereof, should remain under seal.” Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1278 (D.C. Cir. 1991).1
Relatedly, when certain kinds of documents in a criminal case “have historically been open to the press and general public,” and “public access plays a significant positive role in the[ir] function[],” those documents may implicate a qualified First Amendment right to public access. United States v. Thompson, 199 F. Supp. 3d 3, 8 (D.D.C. 2016) (quoting Press-Enterprise Co. v. Superior Ct., 478 U.S. 1, 8–9 (1986)). If the government seeks to seal such documents, it likewise must demonstrate that “(1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Id. (quoting Washington Post v. Robinson, 935 F.2d 282, 290 (D.C. Cir. 1991)).
Here, the government seeks leave to file a substantive motion (the “Motion”), and asks to redact from that Motion (1) the names and other identifying information of certain individuals whom, it asserts, Defendant targeted with inflammatory public statements and who were subsequently subjected to threats and harassment, and (2) excerpts from witness interview transcripts describing the threats and harassment they received. The latter category of redactions is from materials designated as “Sensitive” by the Protective Order entered in this case. See Protective Order, ECF No. 28 ¶ 8(e) (including “transcripts . . . of witness interviews”). But “the mere fact that material may be subject to a protective order limiting disclosure does not mean that it must remain shielded from public disclosure.” United States v. All Assets Held at Bank Julius Baer & Co., 520 F. Supp. 3d 71, 78 (D.D.C. 2020). To approve the sealing of any materials in a criminal case, the court must still engage in the analysis required by the common-law Hubbard factors and, where applicable, the First Amendment.
I. HUBBARD FACTORS
On balance, the Hubbard factors support the government’s proposed redactions. First, the need for public access to the redacted information is relatively small. The court acknowledges the intense public interest in and attention to this case, and has affirmed its commitment “for this case to proceed in the public record as much as possible.” Aug. 11, 2023 Hr’g Tr. at 66:2–3, ECF No. 29. But Hubbard instructs that even when there is “generalized” public interest in a matter, “the purposes of public access are only modestly served” by unsealing information that is not material to the relevant judicial decision. 650 F.2d at 317–18. In its Motion, the government seeks to establish that Defendant has publicly criticized his perceived adversaries and is aware that this criticism has led to their harassment. That proposition does not turn on either the identities of the specific individuals whom the government cites as examples, or the broader transcript excerpts of witness interviews that the government’s Motion summarizes without redaction. Accordingly, the redactions will not significantly affect the public’s ability to understand the basis for the Motion or the court’s eventual decision on it, which reduces the weight of this factor.
The second Hubbard factor—the extent of previous public access—applies differently to the two distinct categories of proposed redactions. The public has had no access to the witness interview transcripts. By contrast, at least some of the names, titles, and other redacted identifying information have been included in, among other public sources, media reports about Defendant’s public statements and their aftermath. The defense argues that with respect to those redactions, an internet search for the quotes or other unredacted information associated with each example in the government’s Motion could reveal the individual’s identity such that “the broad substance in the [redactions] is already public knowledge.” Matter of Pub. Def. Serv. for D.C. to Unseal Certain Recs., 607 F. Supp. 3d 11, 27 (D.D.C. 2022). But even assuming that is true, it does not necessarily compel the parties or the court to disclose the “specific details” of that identifying information. Id. at 26. The need to conduct independent searches or make inferences to confirm the redacted identities undermines the assertion that they are already public. In short, the public’s previous access to the redacted information has been limited (for individual identities) to none (for witness interview transcripts).
Under the third Hubbard factor, the court considers who, if anyone, objects to disclosure. In this case, the government objects. “[T]he fact that a party moves to seal the record weighs in favor of the party’s motion.” Zapp v. Zhenli Ye Gon, 746 F. Supp. 2d 145, 149 (D.D.C. 2010) (citing Nat’l Children’s Ctr., 98 F.3d at 1410). In general, “litigants to [a] proceeding have a lesser claim to privacy than third parties.” Hyatt v. Lee, 251 F. Supp. 3d 181 (D.D.C. 2017) (quotation omitted). But the government “has a unique interest in protecting the integrity of its investigations, and it would be difficult for another third party”—such as a witness whose name is redacted here—“to object without revealing” their identity, which is “precisely the information the [g]overnment seeks to protect.” In re New York Times Co., No. 21-mc-91 (JEB), 2021 WL 5769444, at *5 (D.D.C. Dec. 6, 2021). In that sense, then, the government’s objection is aimed at protecting third parties’ interests, so “the need for minimizing intrusion is especially great” and adds further weight in favor of redaction under this factor. Hubbard, 650 F.2d at 319.
Fourth, the court turns to the strength of the privacy interests at stake. Those interests extend to “witnesses and informants who provided information during the course of an investigation.” In re New York Times Co., 2021 WL 5769444, at *5 (quoting Citizens for Resp. & Ethics in Wash. v. Dep’t of Justice, 854 F.3d 675, 682 (D.C. Cir. 2017)). The court has already noted its concern that “members of the public who are not bound by [Defendant’s] release conditions . . . might use sensitive witness information in ways that intimidate witnesses or otherwise threaten the integrity of the proceedings.” Aug. 11, 2023 Hr’g Tr. at 44:13–16. The individuals whose identifying information and transcripts are redacted have already been harassed and threatened, and they have a strong interest in not repeating those experiences. The risk of that happening weighs substantially in favor of permitting the government’s proposed redactions.
The fifth Hubbard factor evaluates the possibility of prejudice to the party opposing disclosure. The government has identified a significant risk to its interests: Witness intimidation could not only affect the willingness of any of the targeted individuals to participate in the law enforcement process, but also could chill the testimony of other potential witnesses in this case. “Courts in this district have repeatedly recognized the need to protect witness anonymity,” including because of “compelling law enforcement interests” in maintaining “the ‘ability to obtain truthful information from subjects or witnesses’” who can “trust that their statements would in fact be kept private.” In re New York Times Co., 2021 WL 5769444, at *6 (citing, e.g., Matter of the Application of WP Co. LLC, 201 F. Supp. 3d 109, 127 (D.D.C. 2016)). And the Supreme Court has emphasized that “preserving the[] anonymity” of witnesses encourages them to “communicate their knowledge” and therefore supports “effective law enforcement.” Roviaro v. United States, 353 U.S. 53, 59 (1957); see also In re Los Angeles Times Commc’ns LLC, 628 F. Supp. 3d 55, 66–67 (D.D.C. 2022). This factor weighs in favor of the redactions as well.
Sixth and finally, the court examines the purposes for which the government seeks to use the redacted information. The analysis under this factor parallels that of the first. As already explained, the identifying information of individuals targeted by Defendant’s public statements, along with portions of their witness interview transcripts, are not material to the government’s assertion that Defendant will continue to make similar personal attacks, knowing that they may prompt similar harassment. Those specific identities and their accompanying transcripts will have minimal effect on the court’s decision whether to grant the relief the government solicits in its Motion. Consequently, the sixth factor also supports granting leave for the government to make its requested redactions.
In sum, there is little need to publicly identify the specific individuals whose information and witness transcript interviews the government proposes to redact. All told, the redactions concern only the identities of a few examples in a single subpart of the Motion’s background section. The Motion does not rely on the redacted information, and that information is not essential to the court’s decision. On the other side of the scale, the individuals behind those redactions have already experienced harassment and threats due to publication of their information, and the possibility of that happening again risks witness intimidation—including of other witnesses not identified in this motion. While it may be possible for some observers to infer certain redacted identities based on publicly available sources, that alone is not sufficient reason to require the disclosure of the redacted information here. The court therefore concludes that the Hubbard factors support a partial seal of the government’s Motion, limited to its proposed redactions.
II. FIRST AMENDMENT
The defense contends that there is a First Amendment right of public access to the redacted information. But that right only attaches to materials in criminal cases for which “(i) there is an ‘unbroken, uncontradicted history’ of openness, and (ii) public access plays a significant positive role in the functioning” of the material. United States v. Brice, 649 F.3d 793, 795 (D.C. Cir. 2011). For example, the Supreme Court has recognized that “right of access to criminal trials, voir dire proceedings, and preliminary hearings,” and the D.C. Circuit has recognized it for “completed plea agreements” but not “‘unconsummated’ plea agreements.” Id. at 795–96. The defense has not pointed to any history—much less an unbroken, uncontradicted history—of motions like the government’s being fully available to the public, nor has it articulated why public access significantly contributes to their function.
There is little indication of a First Amendment right of access in this instance. To begin, the court is unaware of any specific precedent or history for that right in the context of a motion seeking to restrict extrajudicial pretrial statements or to require notification before conducting a survey of the potential jury pool, much less the identifying information of potential witnesses embedded in those motions. Indeed, the Supreme Court has squarely held that “restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984). Identifying information in a motion dealing with the pretrial collection and public dissemination of information seems closer to “mere discovery, to which the public has no right,” than it does to “evidence attached to dispositive briefs or submitted in open court.” Matter of Pub. Def. Serv. for D.C. to Unseal Certain Recs., 607 F. Supp. 3d at 23. In addition, public access to the proposed redactions is unlikely to meaningfully contribute to the function of the government’s Motion. As a general matter, public access can “strengthen[] public confidence in the outcome reached by the Court.” Id. at 20. But as explained above, the information the government proposes to redact is not essential to the Motion’s claims and is therefore not necessary for “the public to independently evaluate the parties’ arguments and the Court’s conclusion.” Id. at 21.
Ultimately, however, the court need not decide whether the First Amendment applies here because even if it did, the government has met its burden to justify the redactions. Preventing witness intimidation is a compelling interest for the individuals whose information has been redacted, for the government’s law enforcement purposes, and for “the public interest in the due administration of justice” in this case. United States v. Jackson, 513 F.2d 456, 459 (D.C. Cir. 1975); see United States v. Thompson, 713 F.3d 388, 396 (8th Cir. 2013) (“The government’s interest in protecting its witness and the witness’s concern for his own safety justify the partial closing in this case.”); United States v. Addison, 708 F.3d 1181, 1187–88 (10th Cir. 2013) (collecting cases holding witness intimidation to be a compelling interest). The history of harassment and threats towards the individuals whose information has been redacted demonstrates the real likelihood that they could suffer further intimidation upon disclosure of their identities. And the government’s proposed redactions are tailored to mitigate that risk, covering only those individuals’ identifying information in a handful of instances and the witness interview transcripts. The vast majority of the government’s Motion, including all of its key evidence and arguments, remains fully available to the public. Any First Amendment right of public access to the Motion would therefore be satisfied, notwithstanding the government’s limited redactions.
III. CONCLUSION
For these reasons, the government’s request for Leave to File Unredacted Motion Under Seal, and to File Redacted Motion on Public Docket, ECF No. 47, is hereby GRANTED. The Clerk of the Court is directed to file under seal the unredacted copy of the government’s Motion (ECF No. 47-1), attaching Exhibit 1 to the that Motion (ECF No. 47-2) under seal as well. The Clerk of the Court is further directed to file on the public docket the redacted copy of the government’s Motion (ECF No. 47-3), attaching a placeholder sheet for Exhibit 1 to the Motion (ECF No. 47-4), and attaching the two proposed orders referenced in the Motion (ECF Nos. 47-5 and 47-6).
It is FURTHER ORDERED that Defendant shall file any Opposition to the government’s substantive Motion by September 25, 2023, and the government shall file any Reply by September 30, 2023. Accordingly, Defendant’s Motion for Briefing Schedule, ECF No. 53, is GRANTED in part and DENIED in part. In addition, the Clerk of the Court is directed to unseal that motion, ECF No. 53.
Date: September 15, 2023
Tanya S. Chutkan TANYA S. CHUTKAN
_______________
Notes:
1 In its initial request for leave to file, the government addressed the Hubbard factors in only conclusory terms, and did not provide specific arguments in support of its redactions until its Reply brief for that request. In the interests of judicial economy, the court will consider here the arguments raised by the government in its Reply.
Government's Reply in Support of Opposed Motion to Ensure That Extrajudicial Statements do Not Prejudice These Proceedings USDC for the District of Columbia United States of America v. Donald Trump, Defendant Criminal No. 23-cr-257 (TSC) by Jack Smith, Special Counsel 9/29/23
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA v. DONALD J. TRUMP, Defendant.
CRIMINAL NO. 23-cr-257 (TSC)
GOVERNMENT’S REPLY IN SUPPORT OF OPPOSED MOTION TO ENSURE THAT EXTRAJUDICIAL STATEMENTS DO NOT PREJUDICE THESE PROCEEDINGS
After the defendant and his counsel engaged in weeks of widespread public statements threatening the orderly administration of justice in this case, the Government filed a motion seeking: (1) a narrowly tailored order placing restrictions on all parties’ extrajudicial statements, which carefully balances the defendant’s free speech right with the Court’s responsibility to ensure a fair trial free from outside influence, and (2) a common-sense order through which the Court can ensure that no jury study conducted by any party prejudices the venire. In the defendant’s opposition—premised on inapplicable caselaw and false claims—he demands special treatment, asserting that because he is a political candidate, he should have free rein to publicly intimidate witnesses and malign the Court, citizens of this District, and prosecutors. But in this case, Donald J. Trump is a criminal defendant like any other. And as this Court has correctly stated, it has an obligation to protect the integrity of these proceedings from prejudicial interference: “In a criminal case such as this one, a defendant’s free speech is subject to the release conditions imposed at arraignment and must also yield to the orderly administration of justice.” Tr. of Protective Order Hr’g, at 6:4-7 (Aug. 11, 2023). The defendant should not be permitted to continue to try this case in the court of public opinion rather than in the court of law, and thereby undermine the fairness and integrity of this proceeding. The Government’s motion should be granted.
I. The Government’s Proposed 57.7(c) Order Is Necessary and Appropriate
The Government’s proposed order restricting the parties’ statements under Local Criminal Rule 57.7(c) is necessary and appropriate to protect the due administration of justice in this case. The defendant’s opposition to it is based on several faulty premises: that the defendant need not face even the most limited imposition in order to protect the public interest in the due administration of justice; that the legal standard for imposing reasonable restrictions on extrajudicial statements in a criminal case is higher than it actually is; that the defendant’s statements to date have not been intimidating or prejudicial; and that the proposed order would impose sweeping restrictions that it plainly would not. In fact, the proposed order readily meets the relevant legal standard set forth below.
A. Legal Background
Courts have an obligation to “take such steps by rule and regulation that will protect their processes from prejudicial outside interferences.” Sheppard v. Maxwell, 384 U.S. 333, 363 (1966). At times, this obligation may require a court to impose limited and reasonable restrictions on parties to a criminal case—including defendants—if their conduct risks prejudicial interference with the due administration of justice. “Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate [the Court’s] function.” Id. The proposed order would do precisely what Rule 57.7(c) authorizes the Court to do in this particular type of case: establish a reasonable and narrowly tailored restriction that prevents all parties—including the defendant—from making materially prejudicial statements that threaten the integrity of this proceeding and a fair trial.
The defendant’s opposition proffers several standards—including strict scrutiny, clear and present danger, incitement, and true threats—by which to assess the constitutionality of a limitation on extrajudicial statements. None of these is correct. In fact, as the Supreme Court concluded in Gentile v. State Bar of Nevada, a restriction on extrajudicial statements that pose “a substantial likelihood of material prejudice” survives First Amendment scrutiny. 501 U.S. 1030, 1038-39, 1075-76 (1991). In Gentile, a defense attorney was held in contempt of court for violating a court rule that prohibited an attorney from making an “extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” 501 U.S. at 1033 (quoting court rule). The Supreme Court explained that although under Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976), the First Amendment requires “a showing of a ‘clear and present danger’ that a malfunction in the criminal justice system will be caused before a State may prohibit media speech or publication about a particular pending trial,” Gentile, 501 U.S. at 1070-71, “the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press,” id. at 1074.
Specifically, in Gentile, the Court arrived at the “substantial likelihood of material prejudice” standard by assessing that the restriction on extrajudicial statements by defense counsel was “designed to protect the integrity and fairness” of judicial proceedings because it was aimed at “(1) comments that are likely to influence the actual outcome of the trial, and (2) comments that are likely to prejudice the jury venire, even if an untainted panel can ultimately be found.” Id. at 1075. The Court further determined that “[t]he restraint on speech is narrowly tailored to achieve those objectives,” id. at 1076, because “[w]hile supported by the substantial state interest in preventing prejudice to an adjudicative proceeding by those who have a duty to protect its integrity, the Rule is limited on its face to preventing only speech having a substantial likelihood of materially prejudicing that proceeding.” Id.
Although Gentile based its conclusion in part on the role of attorneys as “officer[s] of the court” who “in pending cases [are] subject to ethical restrictions on speech to which an ordinary citizen would not be,” 501 U.S. at 1071-72 (quotation omitted), the “substantial likelihood of material prejudice” standard applies to restrictions on extrajudicial statements by defendants as well. See United States v. Brown, 218 F.3d 415, 428 (5th Cir. 2000) (concluding that Gentile’s substantial-likelihood-of-material-prejudice standard applies to restrictions on extrajudicial statements by a defendant); United States v. Hill, 420 F. App’x 407, 411-12 (5th Cir. 2011) (same); United States v. Batiste, No. 06-20373-CR, 2008 WL 11333659, at *5 (S.D. Fla. Jan. 31, 2008) (same); United States v. Calabrese, No. 02 CR 1050, 2007 WL 2075630, at *1 (N.D. Ill. July 13, 2007) (same); United States v. Fieger, No. 07-20414, 2008 WL 474084, at *3-4 (E.D. Mich. Feb. 19, 2008) (report & recommendation) (same); United States v. Rodriguez, No. 2:04-cr-55, 2006 WL 8438023, at *3 (D.N.D. June 29, 2006) (same); United States v. Koubriti, 307 F. Supp. 2d 891, 899 (E.D. Mich. 2004) (same); United States v. Scrushy, No. 2:03-cr-530, 2004 WL 848221, at *4-6 (N.D. Ala. April 13, 2004) (same); United States v. Hernandez, No. 1:98-cr-721, 2001 WL 37126807, at *7-9 (S.D. Fla. Feb. 20, 2001) (same); United States v. Davis, 902 F. Supp. 98, 102 (E.D. La. 1995) (same). But see United States v. Carmichael, 326 F. Supp. 2d 1267, 1293 (M.D. Ala. 2004) (concluding that the clear-and-present-danger standard should apply to defendants); United States v. McGregor, 838 F. Supp. 2d 1256, 1260-62 (M.D. Ala. 2012) (same); United States v. Schock, No. 16-cr-30061, 2016 WL 7176578, at *1-2 (C.D. Ill. Dec. 9, 2016) (applying test of “serious and imminent threat to the administration of justice”); Nelle ex rel. B.N. v. Huntsville Sch. Dist., No. 5:21-cv-5158, 2021 WL 6135690 (E.D. Ark. Dec. 29, 2021) (concluding that the clear-and-present-danger standard should apply to parties in a civil case). In Gentile, the Supreme Court distinguished “between participants in the litigation and strangers to it,” and the court explained that its prior cases “expressly contemplated that the speech of those participating before the courts could be limited.” 501 U.S. at 1072-73. The Court noted its admonition in Sheppard, cited above, that included “the accused” among the parties that should not be “permitted to frustrate” the court’s function. 501 U.S. at 1072 (quoting Sheppard, 384 U.S. at 363); see also Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 n.18 (1984) (noting that the First Amendment rights of litigants “may be subordinated to other interests” and that “on several occasions this Court has approved restriction[s] on the communications of trial participants where necessary to ensure a fair trial for a criminal defendant”).
Courts in this District are in accord, and have adopted the Gentile standard in Rule 57.7(c) orders, including those that apply to defendants as well as attorneys. See, e.g., United States v. Stone, No. 19-cr-18, ECF No. 36 at 3 (D.D.C. Feb. 15, 2019) (Rule 57.7(c) order to attorneys to “refrain from making statements to the media or in public settings that pose a substantial likelihood of material prejudice to this case”); United States v. Butina, No. 18-cr-218, ECF No. 31 at 2 (D.D.C. Sept. 12, 2018) (Rule 57.7(c) order to “all interested participants, in the matter, including the parties, any potential witnesses, and counsel for the parties and the witnesses . . . to refrain from making statements to the media or in public settings that pose a substantial likelihood of material prejudice”); United States v. Manafort, No. 17-cr-201, ECF No. 38 at 2 (D.D.C. Nov. 8, 2017) (Rule 57.7(c) order citing Gentile and ordering “all interested participants in the matter, including the parties, any potential witness, and counsel for the parties and the witnesses . . . to refrain from making statements to the media or in public settings that pose a substantial likelihood of material prejudice to this case”); United States v. Clemens, No. 10-223, 2011 WL 1256628, *1 (D.D.C. Apr. 4, 2011) (cautioning defendant, among others, that his public statements regarding the case had been ”precariously close to violating, if not violating,” the court’s order under Gentile directing “all interested participants in this matter” to “refrain from making any further statements about this case to the media or in public settings outside the courtroom that are ‘substantially likely to have a materially prejudicial effect’ on this case”) (internal citations omitted).
For various reasons, the cases the defendant cites (ECF No. 60 at 4-6) to support a different standard are inapposite. Many of them merely discuss general First Amendment principles that do not apply in this context. The cases cited that more squarely address extrajudicial statements by litigants are either civil cases, cases decided before Gentile, or both. The only criminal case that the defendant cites is United States v. Ford, 830 F.2d 596, 598 (6th Cir. 1987); that case, in which the Sixth Circuit applied the clear-and-present-danger standard, was decided before Gentile, which “foreclose[s] the applicability of” the clear-and-present-danger standard “to the regulation of speech by trial participants.” Brown, 218 F.3d at 427 (discussing Ford). Since Gentile, district courts in the Sixth Circuit have recognized that Gentile, rather than Ford, supplies the applicable standard. See, e.g., Koubriti, 307 F. Supp. 2d at 899; Fieger, 2008 WL 474084, at *3-4. The civil cases cited by defendant, such as the Fourth Circuit’s opinion in In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir. 2018), do not govern here. See, e.g., Marceaux v. Lafayette City-Par. Consol. Gov’t, 731 F.3d 488, 493 (5th Cir. 2013) (after Brown, separately addressing the standard that applies in civil litigation). The defendant fails to inform the Court, for example, that the Fourth Circuit distinguishes between restraints on extrajudicial statements in civil and criminal cases. See Hirschkop v. Snead, 594 F.2d 356, 373 (4th Cir. 1979) (en banc) (per curiam). In fact, the Fourth Circuit permits restraints on extrajudicial statements by participants in criminal cases if there is a ‘‘reasonable likelihood’’ that extrajudicial commentary will prejudice a fair trial. In re Russell, 726 F.2d 1007, 1010 (4th Cir. 1984); see also In re Morrissey, 168 F.3d 134, 140 (4th Cir. 1999) (concluding that Gentile did not overrule Hirschkop).
In sum, the Court may enter an order in this case restricting the parties’ extrajudicial statements if the statements present a “substantial likelihood of material prejudice” as long as the Court’s order is narrowly tailored to the objectives of preventing comments that are likely to influence the actual outcome of trial or are likely to prejudice the venire.1 Gentile, 501 U.S. at 1075-1076. As described in the Government’s initial motion, ECF No. 57, and below, the proposed order targets only extrajudicial statements that present a substantial likelihood of material prejudice and is narrowly tailored to precisely those objectives.
B. The Proposed Order Is Necessary and Constitutional, and the Defendant’s Claims to the Contrary Misstate the Facts
The proposed order under Rule 57.7(c) is consistent with Gentile and necessary under the circumstances—circumstances that the defendant himself has created by waging a sustained campaign of prejudicial public statements regarding witnesses, the Court, the District, and prosecutors. To argue otherwise, the defendant’s opposition ignores the substantial record of the defendant’s prejudicial statements, misstates the facts, and claims that the proposed order imposes restrictions that it clearly does not.
i. The Proposed Order
The proposed order is consistent with Gentile and is more narrowly tailored than similar orders entered by other courts in this District. First, the proposed order applies the Gentile standard and prohibits only statements “that pose a substantial likelihood of material prejudice to this case.” See ECF No. 57-2 at 1. To further tailor the restriction and focus on statements most likely to prejudice the jury venire or the outcome of the trial, see Gentile at 1075-76, the proposed order specifies that such statements include those regarding the identity, testimony, or credibility of prospective witnesses, and statements that are disparaging and inflammatory, or intimidating. ECF No. 57-2 at 1. Far from being the “contempt trap”2 that the defendant claims, ECF No. 60 at 17, the proposed order is more targeted than others previously entered in this District, as described above. Finally, while the order that the government has proposed is narrowly tailored, the Court may consider modifications, suspensions, or reinstatements of the order as changing circumstances may warrant. See, e.g., Brown, 218 F.3d at 418-420, and Brief of Appellee at *21, United States v. Brown, No. 00-30134, 2000 WL 33981267 (5th Cir. Mar. 9, 2000) (where, in the final two months leading up to an election, the district court suspended an order restricting a defendant’s speech, but reinstituted an order almost immediately because various defendants released prejudicial audio recordings in its absence).
The need for the proposed order is further evidenced by a review of the defendant’s prejudicial statements in the weeks since the Government initially filed its motion on September 5. See ECF No. 47-3. Since that date, the defendant has continued to make statements that pose a substantial likelihood of material prejudice to this case and that fall within the narrowly tailored order proposed by the Government. These include:
• On September 5, shortly before the Government filed its motion, the defendant posted an article on the social media platform Truth Social, on which the defendant has more than 6 million followers, making claims about the Court with the sarcastic caption, “Oh, I’m sure she will be very fair” and an article circulating a false accusation against a Special Counsel’s Office prosecutor with the caption, “Really corrupt!” 3
• On September 6, on Truth Social, the defendant issued two posts attacking the former Vice President [Mike Pence], a witness identified in the indictment, in relation to this case, saying that he had seen the Vice President “make up stories about me, which are absolutely false,” and that the witness had gone to the “Dark Side”;4
• In an interview aired on NBC’s Meet the Press on September 17,5 the defendant answered questions for more than an hour, and said, among other things:
o That the Georgia Secretary of State [Brad Raffensperger], a witness identified in the indictment, recently said things that he had not, including that the defendant “didn’t do anything wrong” during a phone call constituting an overt act in the indictment;
o That another witness identified in the indictment, the former Attorney General [Bill Barr], “didn’t do his job” during the charged conspiracy because he was afraid of being impeached;
• On September 22, on Truth Social, the defendant falsely claimed that the retiring Chairman of the Joint Chiefs of Staff [Mark Milley], a witness cited in the indictment, had committed treason and suggested that he should be executed:6
• On September 23, on Truth Social, the defendant re-posted with the caption “What a mess!” the false claim that the Georgia Secretary of State [Brad Raffensperger] “knew [of tens of thousands of fraudulent votes in Georgia in 2020] and covered it up”;7 and
• On September 26, on Truth Social, the defendant posted a link to an article singling out a specific prosecutor in the Special Counsel’s Office and claiming that the SCO is a “team of Lunatics that are working so hard on creating Election Interference . . . ” 8
The defendant’s baseless attacks on the Court and two individual prosecutors not only could subject them to threats—it also could cause potential jurors to develop views about the propriety of the prosecution, an improper consideration for a juror prior to trial. See Fieger, 2008 WL 474084 at *3-6 (E.D. Mich. Feb. 19, 2008) (magistrate judge imposing an order, adopted in relevant part by district court, preventing defendant from publicizing, including through commercials, his claims of improper, selective, or vindictive prosecution because they “create the danger that potential jurors will associate the content of these commercials to this criminal prosecution of Defendant Fieger. The commercials therefore are substantially likely to materially prejudice a fair trial even though this pending criminal action is not explicitly mentioned.”); Scrushy, 2004 WL 848221, at *4-*6 & n.5 (N.D. Ala. April 13, 2004) (ordering all trial participants, including the defendant, to “remove from their existing webpages . . . allegations of prosecutorial misconduct,” and ordering the defendant not to use “his morning television show . . . to make statements about the case that his lawyers would be precluded from making by the Rules of Professional Conduct”).
Likewise, the defendant’s continuing public statements about witnesses are substantially likely to materially prejudice a fair trial. In his opposition, the defendant makes light of some of his previous attacks on witnesses—some of whom are federal and state government figures in their own right—by stating that such witnesses do not “sh[y] away from a hearty public debate with [the defendant]” and were not intimidated by the defendant, or by implying that government officials somehow have asked for his attacks because they “have made politics, for all its discord and discourse, a large part of their lives.” ECF No. 60 at n.7. Even assuming that certain witnesses are not intimidated by the defendant’s statements, other witnesses see and may be affected by what the defendant does to those who are called to testify in this case. And regardless of whether certain witnesses are intimidated by the defendant’s extrajudicial statements, the defendant should not be permitted to attack or bolster the credibility of any witness in a manner that could influence prospective jurors.
In addition, the defendant’s argument essentially concedes that he is trying this case in the public sphere, not in the courtroom, which is precisely the harm that Rule 57.7(c) is designed to prevent. The defendant is publicly maligning witnesses and very intentionally commenting on the specific topics of their potential testimony at trial. In the context of a pending criminal case and trial, it is not the solution to the defendant’s improper and prejudicial statements to encourage a “hearty public debate” in the media regarding witnesses and the merits of the case—it is the problem. See Sheppard, 384 U.S. at 351 (“legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper” and “freedom of discussion . . . must not be allowed to divert the trial from the very purpose of a court system to adjudicate controversies . . . in the calmness and solemnity of the courtroom according to legal procedures”) (internal citations omitted). From the defendant’s statements, potential jurors may form improper views about various witnesses’ reputations, veracity, or what they will say at trial. The Court can and should prevent such improper dissemination of information about the substance of this case. Id. at 363; see also Marshall v. United States, 360 U.S. 310, 312-13 (1959) (prejudice arising from jurors’ exposure to evidence from extrajudicial sources can be particularly acute because “it is then not tempered by protective procedures.”); United States v. Lindh, 198 F. Supp. 2d 739, 743 (E.D. Va. 2002) (“Defendant has no constitutional right to use the media to influence public opinion concerning his case so as to gain an advantage at trial. No such right inheres in either the Sixth Amendment right to a public trial, or the public’s First Amendment right to a free press.”).
Contrary to the defendant’s claim, the Government is not trying to “unconstitutionally silence” the defendant, ECF No. 60 at 2, and the proposed order would have no such effect. Since the Government’s initial filing, beyond the prejudicial examples cited above, the defendant has made a large volume and wide variety of public statements—through social media posts, interviews, and speeches—that would be unaffected by the proposed order. If the Court entered the proposed order, it would in no way hinder the defendant’s ability to campaign and publicly maintain his innocence. All it would limit is the defendant’s use of his candidacy as a cover for making prejudicial public statements about this case—and there is no legitimate need for the defendant, in the course of his campaign, to attack known witnesses regarding the substance of their anticipated testimony or otherwise engage in materially prejudicial commentary in violation of the proposed order.
ii. The Defendant’s Opposition Misstates the Facts
The defendant’s opposition makes no attempt to address most of the factual record that the Government submitted to the Court regarding the defendant’s history and current practice of using public statements to target individuals, see ECF No. 57 at 2-13, and instead advances conclusory statements that the Government’s claims are baseless. That is because he cannot explain away the obvious intent and well-known effect of his words. The single statement that the defendant does address—in a footnote—is the threatening Truth Social post that he issued on August 4, the day after his arraignment in this case: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” The defendant complains that the Government’s motion did not note that after public outcry—given the objectively reasonable understanding of the defendant’s post as a threat related to this case— a spokesperson issued a statement claiming that the defendant had issued the threat “in response to . . . special interest groups and Super PACs.” ECF No. 60 at n.8. But the spokesperson’s after-the-fact explanation is implausible on its face. The truth is clear: the defendant was caught making a public threat and then had a spokesperson issue an excuse. As the Court has stated, “even arguably ambiguous statements from parties or their counsel, if they could reasonably be interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process.” Protective Order Hr’g 72:7-10. The defendant should not be permitted to obtain the benefits of his incendiary public statements and then avoid accountability by having others—whose messages he knows will receive markedly less attention than his own—feign retraction.9 Likewise, 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.
The defendant’s opposition also makes the self-serving claim that rather than address the source of the material prejudice—the defendant’s inflammatory statements—the Court should employ alternatives to a Rule 57.7(c) order, such as change of venue, postponement of trial, voir dire, or jury instructions. ECF No. 60 at 14. But such alternatives are not adequate because they would not address the source of the prejudice: the defendant’s repeated efforts to try this case in the media. The Court’s duty here is to implement “measures that will prevent the prejudice at its inception,” Sheppard, 384 U.S. at 363, and so long as the defendant persists in making materially prejudicial statements on social media, in interviews, and in speeches, the defendant will continue to affect the potential venire for this trial. In addition, the defendant’s statements have such broad reach that as long as he makes them, he will taint potential jurors anywhere in the country. See Gentile, 501 U.S. at 1075 (even “[e]xtensive voir dire may not be able to filter out all of the effects of pretrial publicity, and with increasingly widespread media coverage of criminal trials, a change of venue may not suffice to undo the effect of [trial participants’] statements”); Brown, 218 F.3d at 431 (jury instruction may fail to address threat of “carnival atmosphere” around trial).Finally, the alternatives that the defendant suggests the Court consider would have the perverse incentive of encouraging, rather than curbing, the defendant’s prejudicial statements. The defendant has, for instance, already stated publicly that he intends to seek a change of venue in this case. See ECF No. 57 at 7-8. He should not be permitted to pollute the jury pool in this District with his prejudicial statements and then seek a change of venue based on the complaint that the venire is tainted.
The defendant seeks to deflect responsibility for his own prejudicial statements by claiming that the indictment in this case was “false and derogatory” and that the Special Counsel’s brief statement upon its unsealing was prejudicial because it ascribed to the defendant responsibility for the events of January 6, 2021—which, according to the defendant’s opposition, the indictment does not allege. ECF No. 60 at 19-20. The defendant is wrong. First, the indictment, filed in court, does what indictments are supposed to do: set forth the criminal charges against the defendant and give notice of the factual allegations that underpin them. The defendant provides no support for his claim that the indictment can be a source of unfair prejudice here—because there is no such support. And second, the indictment does in fact clearly link the defendant and his actions to the events of January 6. It alleges—and at trial, the Government will prove—the following:
• The defendant’s criminal conspiracies targeted, in part, the January 6 certification and capitalized “on the widespread mistrust the [d]efendant was creating through pervasive and destabilizing lies about election fraud,” ECF No. 1 at ¶4.
• In advance of January 6, the defendant “urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, ‘Big protest in D.C. on January 6th. Be there, will be wild!,’” id. at ¶87. He then “set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in [his] favor, id. at ¶96.
• Then, despite his awareness “that the crowd [ ] on January 6 was going to be ‘angry,’” id. at ¶98, on the morning of January 6, the defendant “decided to single out the Vice President in public remarks,” id. at ¶102, and “repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused,” id. at ¶10d.
• Finally, on the afternoon of January 6, after “a large and angry crowd—including many individuals whom the [d]efendant had deceived into believing the Vice President could and might change the election results—violently attacked the Capitol and halted the proceeding,” the defendant exploited the disruption in furtherance of his efforts to obstruct the certification, id. at ¶10e.
In short, the indictment alleges that the defendant’s actions, including his campaign of knowingly false claims of election fraud, led to the events of January 6.
The defendant’s motion also attempts to downplay defense counsel’s clear violations of Rule 57.7(b), and appears to suggest that the defendant’s attorneys reserve the right to violate that Rule in the future. See ECF No. 60 at 19-22. But it is uncontroverted that, on multiple occasions in the week following the unsealing of the indictment, defense counsel appeared on media programs and talked extensively about this case, including on topics that Rule 57.7(b) prohibits attorneys from discussing. See ECF No. 57 at 16 (citing Rule 57.7(b) and linking to lead counsel’s appearances). The defendant’s opposition then complains that the Court would render his attorneys inadequate if it were to restrict them from further public statements through the Government’s proposed 57.7(c) order, but fails to recognize that most of its terms mirror existing restrictions on all attorneys practicing in this District under Local Criminal Rule 57.7(b). Compare Local Criminal Rule 57.7(b) (prohibiting attorneys from making extrajudicial statements regarding, among other things, the “identity, testimony, or credibility of prospective witnesses”) with ECF No. 57-2 (same, with prohibition on “disparaging and inflammatory or intimidating statements” about parties, witnesses, attorneys, court personnel, or potential jurors).
Finally, the defendant’s opposition makes faulty claims about the scope and applicability of the proposed order. In addition to making inaccurate claims about the proposed order’s breadth, see ECF No. 60 at 17, the defendant suggests that the Government seeks to prevent the defendant from “redress[ing] the unfairness of this proceeding through legitimate means” including “for example, filing motions with the Court.” ECF No. 60 at 10-11. But nothing in the proposed order prevents the defendant from doing so—rather, it explicitly states that he can. See ECF No. 57-2 at 1-2 (order “does not preclude the defendant or his attorneys, agents, or others acting on his behalf from (a) quoting or referring without comment to public records of the court in the case”). Similarly, the defendant’s opposition states that “the prosecution seeks only to bar [the defendant] from speaking.” ECF No. 60 at 13. Not so. The proposed order applies to all parties—including the Government. But the defendant’s allegation here is telling, in that it highlights that the defendant—and no other party—is making materially prejudicial public statements in this case.
In sum, the Government has provided the Court with a robust factual record to establish that the defendant’s pervasive public comments about this case, the witnesses, the Court, and prosecutors present a substantial likelihood of material prejudice to these proceedings. To prevent that prejudice, the Government has proposed a narrowly tailored order pursuant to Rule 57.7(c) placing limited restrictions on the public statements of all parties to this case. In response, the defendant’s opposition demands special treatment, asserting that the defendant’s desire to publicly malign witnesses without restriction prevails over all other interests—including that of the public in the fair administration of justice. See Koubriti, 307 F. Supp. 2d at 897 (“the vigilance of trial courts against the prejudicial effects of pretrial publicity also protects the interest of the public and the Government in the fair administration of criminal justice”). The Court should treat this defendant like all others, and enter the Government’s proposed 57.7(c) order.
II. The Government’s Proposed Order on Jury Studies Seeks Only to Protect the Venire, and the Defendant’s Arguments Against it Are Unavailing
Although he does not challenge the Court’s discretionary power to enter it, the defendant also opposes the Government’s request for an order that would provide the Court with an opportunity to ensure that jury studies by the parties do not prejudice the jury pool. ECF No. 60 at 23-25. At the outset, it is important to reiterate the limited scope of what the Government actually proposes in contrast to the defendant’s inaccurate characterization of it. The Government does not seek to prohibit the defendant from using a jury study, nor does it seek to intrude into the defense strategy. Instead, the Government has proposed that the Court enter an order with five reasonable conditions: (1) any party—whether the Government or the defendant—must notify the Court ex parte before the party or “any individual or entity acting at the party’s direction or under the party’s control undertakes any jury study in the District of Columbia;” (2) the notice must include a brief description of the intended methodology, all questions to be asked, and the expected number of participants; (3) the party cannot begin the jury study, or use any results from it, absent the Court’s approval, which may be conditioned on editing or removing portions of the intended jury study that threaten to materially prejudice the jury pool; (4) the jury study must be completed 30 days before the start of jury selection; and (5) the party must maintain the names and addresses of the study participants and provide that information to the Court at least two weeks prior to jury selection. See ECF No. 57-3. The defendant objects to every one of these provisions.10
First, the defendant posits that “jury studies and polling have almost no chance of influencing the jury,” noting that “Washington D.C. has almost 700,000 residents” and “[a] statistically significant sample size would ordinarily include only a few hundred people.” ECF No. 60 at 23. But the size of the jury pool is immaterial; indeed, the Government’s motion cites to a standing order on jury studies in a Division of the Eastern District of Texas with a population exceeding that of this District. See ECF No. 57 at 19 (citing Judge Clark’s standing order in the Beaumont and Lufkin Divisions); https://www.census.gov/library/stories/ ... opulation- change-between-census-decade.html (estimating the 2020 population of the counties comprising the Division to be approximately 832,000). In addition, nothing would prevent the defendant from creating and implementing a biased jury study and then publicizing its results—or answers to specific, slanted questions—on a widespread basis to the entire potential jury pool. The Court should exercise its discretion to protect against such prejudice by taking the simple step of reviewing the proposal ex parte.
Second, the defendant suggests that no Court regulation is needed because “the purpose of polling and jury studies is not to influence respondents, but to get a true read on the community’s opinions or feelings on certain issues.” ECF No. 60 at 23. But in practice, jury studies, like other polls, may be skewed to influence the participants or shape the results. See Ellen Kreitzberg & Mary Procaccio-Flowers, Jury Selection: The Law, Art & Science of Selecting a Jury § 3:4 (2002) (“Providing respondents with a misleading description of the facts may produce responses that are pleasing to the client, but will be useless in providing insight into the reactions of the jurors who will hear the whole truth during trial.”).11 Because skewed studies could influence potential jurors, the questions should be subject to review by the Court. See Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 726 (Tex. 2020) (“A campaign of disinformation, in whatever form, undermines the sanctity of the judicial process and is inimical to the constitutional promise of a fair and impartial jury trial.”).
Third, the defendant objects to a requirement that any jury study be concluded 30 days before trial because “polling is most valuable if conducted close to trial.” ECF No. 60 at 24. Yet at the status hearing one month ago, defense counsel suggested the defendant would “likely need to do it sooner rather than later,” Transcript of Status Hearing, at 59 (Aug. 28, 2023), in reference to polling for a Rule 26 motion, the filing deadline for which is October 9, 2023. See ECF No. 39 at ¶2 (setting deadline for “[a]ll other pre-trial motions, excluding motions in limine”). In any event, the proposed 30-day limit creates a reasonable buffer that would reduce the potential impact of any jury study on the venire. See Brewer, 601 S.W.3d at 726.
Fourth, relying on Blankenship v. Fox News Network, LLC, No. 2:19-cv-00236, 2020 WL 7225765, at *1 n.3 (S.D.W. Va. Dec. 8, 2020), the defendant contends that “polls and jury studies commissioned by defense counsel are work product and some parts, if not all, are attorney-client privileged.” ECF No. 60 at 23. That inapposite case, though, dealt with a civil subpoena seeking “all documents and communications that underlie these investigations as well as analyses carried out on Plaintiff’s behalf and documents and communications between Plaintiff and his attorneys and [the jury consulting company] pertaining to the criminal trial.” Id. at *2. Here, the proposed order addresses a far more limited set of information—“a brief description of the intended methodology. . . all questions that will be asked. . . [and] the expected number of participants,” as well as the participants’ names and addresses. ECF No. 57-3 at 1-2. Assuming any privileges applied to such information, they would dissipate when the “questions to be asked” were actually asked of the participants. In other words, the parties cannot shield from the Court, on privilege grounds, the questions they intend to broadcast to hundreds, if not thousands, of District residents. Setting that aside, the defendant’s argument ignores that the proposed order calls for information about proposed jury studies to be provided ex parte to the Court—not to the Government—and does not require that the results or analysis of any jury study be disclosed at all. Moreover, the Court could enter an order under Federal Rule of Evidence 502(d) to further mitigate any concern. See id. (“A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other federal or state proceeding.”).
The rationale for the proposed order is to protect the integrity of the trial and the jury pool, and the regulations it would impose are modest. The defendant’s complaints are unfounded, and the Court should exercise its discretion to enter the order.
III. Conclusion
Through both of its proposed orders, the Government seeks appropriate processes for protecting the jury pool in this case and the integrity of this proceeding. The Court should grant the Government’s motion and enter them.
Respectfully submitted,
JACK SMITH Special Counsel By: /s/Molly Gaston Molly Gaston Thomas P. Windom Senior Assistant Special Counsels 950 Pennsylvania Avenue NW Room B-206 Washington, D.C. 20530 ______________
Notes:
1 Even if the highest of the many standards the defendant proffers—the clear-and-present danger standard—were applicable, the Government would meet that standard as well. See Levine v. U.S. Dist. Ct. for Cent. Dist. of California, 764 F.2d 590, 598 (9th Cir. 1985) (district court’s findings—that defense attorneys’ detailed statements to media about case presented “serious and imminent threat to a fair trial” that outweighed any First Amendment rights at stake—were sufficient).
2 Defense counsel previously used this same “contempt trap” language when opposing the imposition of a protective order in this case. The Court rejected the suggestion that balancing the defendant’s interests with the need to protect the due administration of justice was tantamount to a contempt trap. See Tr. of Protective Order Hr’g, at 17:12-17 (Aug. 11, 2023) (“Protective Order Hr’g”) (COURT: “[N]obody’s talked about contempt. What we’re talking about now are the parameters of the order, and the parameters of this order that we’re all considering means that there are certain things, if they have an impact on the administration of justice or on witnesses, can’t be said regardless of what endeavors the defendant is currently engaged in.”). 3 https://truthsocial.com/@realDonaldTrum ... 116097929;https://truthsocial.com/@realDonaldTrum ... 0388667397.
9 The defendant recently was caught potentially violating his conditions of release, and tried to walk that back in similar fashion. In particular, on September 25, the defendant’s campaign spokesman posted a video of the defendant in the Palmetto State Armory, a Federal Firearms Licensee in Summerville, South Carolina. The video posted by the spokesman showed the defendant holding a Glock pistol with the defendant’s likeness etched into it. The defendant stated, “I’ve got to buy one,” and posed for pictures with the FFL owners. The defendant’s spokesman captioned the video Tweet with the representation that the defendant had purchased the pistol, exclaiming, “President Trump purchases a @GLOCKInc in South Carolina!” The spokesman subsequently deleted the post and retracted his statement, saying that the defendant “did not purchase or take possession of the firearm” (a claim directly contradicted by the video showing the defendant possessing the pistol). See Fox News, Trump campaign walks back claim former president purchased Glock amid questions about legality (Sept. 25, 2023), https://www.foxnews.com/politics/trump- ... purchased- glock-amid-questions-about-legality (accessed Sept. 26, 2023). Despite his spokesperson’s retraction, the Defendant then re-posted a video of the incident posted by one of his followers with the caption, “MY PRESIDENT Trump just bought a Golden Glock before his rally in South Carolina after being arrested 4 TIMES in a year.”
The defendant either purchased a gun in violation of the law and his conditions of release, or seeks to benefit from his supporters’ mistaken belief that he did so. It would be a separate federal crime, and thus a violation of the defendant’s conditions of release, for him to purchase a gun while this felony indictment is pending. See 18 U.S.C. § 922(n).
10 The defendant objects to the Government’s proposal, but “has no objection to informing the Court of the dates and sample sizes of his polling in the District of Columbia.” ECF No. 60 at 23. The defendant’s alternative, however, would not address the potential tangible harm— materially prejudicing the jury pool—posed by inappropriate studies.
11 While in office, the defendant provided an example of one type of distorted polling the proposed order seeks to prevent: “A poll should be done on which is the more dishonest and deceitful newspaper, the Failing New York Times or the Amazon (lobbyist) Washington Post! They are both a disgrace to our County, the Enemy of the People, but I just can’t seem to figure out which is worse?” See Trump Tweet, June 16, 2019, 9:39:22 EST, available at https://www.thetrumparchive.com/ (last visited Sept. 27, 2023).
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA v. DONALD J. TRUMP, Defendant.
CRIMINAL NO. 23-cr-257 (TSC)
GOVERNMENT’S OPPOSED MOTION FOR FAIR AND PROTECTIVE JURY PROCEDURES
Trial in this matter—in which the defendant, a former president, is charged with attempting to overturn the presidential election, disenfranchise millions of Americans, and obstruct the peaceful transfer of power—is a matter of national importance and will likely generate significant public attention. To ensure that voir dire in this case proceeds in an orderly, efficient, and fair manner, the Government proposes that the Court use a written juror questionnaire shortly in advance of in-person jury selection. A questionnaire would save time by allowing the Court to excuse some potential jurors without requiring them to appear in court, and by permitting the Court and the parties to organize and streamline their questions for in-person voir dire. Because the questionnaire process will give the parties early access to prospective jurors’ identifying information and the ability to conduct open-source research regarding them, the Court should impose reasonable boundaries for such research and reiterate its practice—standard among courts in this District—of prohibiting public identification of potential or selected jurors. Through counsel, the defendant opposes this motion.
I. Proposed Jury Measures
The Court has broad discretion to manage jury selection, Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981), and a duty to “maintain control of the process” to “preserve fairness and at the same time protect legitimate privacy,” Press-Enterprise Co. v. Superior Ct. of Cal., Riverside Cnty., 464 U.S. 501, 512 (1984). The Court’s discretion includes determining whether to employ a written juror questionnaire, deciding which questions to pose to prospective jurors, and deploying measures including anonymity and sequestration necessary to protect the integrity of the proceeding. See Skilling v. United States, 561 U.S. 358, 386 (2010) (citing Ristaino v. Ross, 424 U.S. 589, 594–595 (1976)) (“Jury selection . . . is ‘particularly within the province of the trial judge’”); United States v. Tsarnaev, 595 U.S. 302, 313 (2022) (“A trial court’s broad discretion in this area includes deciding what questions to ask prospective jurors.”); United States v. Childress, 58 F.3d 693, 702 (D.C. Cir. 1995) (Court’s duty “to make a sensitive appraisal of the climate surrounding a trial and a prediction as to the potential security or publicity problems that may arise during the proceedings” includes determining whether to anonymize jury); United States v. Haldeman, 559 F.2d 31, 85 n.135 (D.C. Cir. 1976) (en banc) (per curiam) (it is “axiomatic that the decision to sequester (or unsequester) a jury rests within the trial judge’s discretion”). In this case, the Court should exercise its discretion to streamline jury selection through the use of a jury questionnaire. At the same time, in light of the public attention that is expected, and the defendant’s record of using public social media platforms in an intimidating manner—further evinced by events in a separate trial in New York last week—the Court should implement several of the standard measures frequently used in this District to protect the jury, and impose additional clear guidelines for use of information regarding potential jurors.1
A. The Government Requests a Questionnaire To Make Voir Dire More Efficient
Use of a written questionnaire in this case, shortly before in-person voir dire, will expedite the process of selecting a fair jury. “Written questionnaires are now a common complement to oral examination when selecting an effective and impartial jury,” United States v. Isaacson, 752 F.3d 1291, 1301 (11th Cir. 2014), and are “routinely employ[ed] . . . to facilitate jury voir dire in a number of circumstances,” id., including “where a large number of prospective jurors must be screened; where an anonymous jury is to be empaneled; [or] where there has been extensive pretrial publicity,” United States v. Quinones, 511 F.3d 289, 299 (2d Cir. 2007) (citations omitted). When confronted with trials estimated to last longer than two weeks or that are otherwise expected to require a larger jury pool from which to draw, courts in this District have used questionnaires to make in-person voir dire more expedient. See, e.g., United States v. Rhodes, No. 22-cr-15 (APM) (D.D.C.) (advance written questionnaire used for eight week January 6-related seditious conspiracy trial of multiple defendants associated with the Oath Keepers); United States v. Nordean, No. 21-cr-175 (TJK) (D.D.C.) (advance written questionnaire used in January 6-related months-long seditious conspiracy trial of multiple defendants associated with the Proud Boys); United States v. Stone, No. 19-cr-18 (ABJ) (D.D.C.) (advance written questionnaire used in highly publicized trial for false statements to Congress); United States v. Slatten, No. 14-cr-107 (RCL) (D.D.C.) (advance written questionnaire used in months-long trial of Blackwater contractor for 2007 massacre at Nisour Square in Baghdad). Here, a questionnaire will make in-person voir dire more efficient because it will allow the Court and the parties, in advance, to confer and excuse jurors who should be struck for cause. It also will assist the parties in preparing organized and succinct lists of questions, tailored to each juror. See Slatten, ECF No. 1052 at 6 (June 18, 2018) (court informing jurors that questionnaire “will save a lot of time ultimately and will speed the process of jury selection and minimize the amount of time that you must spend in the courtroom while a jury is selected”).
In particular, the Government proposes the following schedule consistent with the written questionnaire process directed by this Court in United States v. Alford, No. 21-cr-263 (D.D.C.), and other cases in this District. First, the Court should order the Government to draft a questionnaire, confer with the defense, and file a proposed questionnaire with indications as to which questions the parties agree upon and which they do not, after which the Court will issue a final questionnaire. See id., ECF No. 46 at 15 (Apr. 18, 2022) (ordering defendant, who moved for written advance questionnaire, to “prepare a written questionnaire for distribution to prospective jurors” and “meet and confer with the government . . . before submitting it for court approval,” indicating in his filing disputes between the parties regarding language). Next, the Clerk will issue summonses to potential jurors to appear at the courthouse and complete written questionnaires in advance of in-person voir dire. Courts have scheduled this for varying amounts of time in advance of trial, ranging from days, to weeks, to months. See id., ECF No. 50 (one day in advance); Rhodes, ECF Nos. 133 & 319 (Apr. 29, 2022 & Sept. 15, 2022) (two weeks in advance); Nordean, ECF No. 562 (Nov. 30, 2022) (roughly two weeks in advance); Stone, ECF No. 362 at 10, 21 (April 16, 2020) (almost two months in advance). Here, subject as always to the Court’s schedule, the Government proposes that jurors complete written questionnaires on or about Friday, February 9, 2024, approximately three weeks before in-person jury selection begins on Monday, March 4. Then, on a date of the Court’s choosing the week of February 26, the parties would jointly submit a list of jurors whom they agree should be struck for cause, and separate lists of jurors whom each party moves to strike for cause, based solely on information in the questionnaire (e.g, individuals who establish that they genuinely cannot serve because of some actual and immovable personal or professional conflict, or individuals who unequivocally establish that they cannot follow the Court’s instructions).
B. The Court Should Impose Reasonable and Standard Restrictions to Protect Jurors
If the Court approves the use of a questionnaire, the parties will learn the identities of potential jurors in advance of in-person jury selection. It is commonplace in this District for parties, once they are provided with jurors’ identifying information, to conduct open-source social media research on the venire. Given the particular sensitivities of this case, stemming both from heightened public interest and the defendant’s record of using social media to attack others, the Court should impose certain limited restrictions on the ability of the parties to conduct research on potential jurors during jury selection and trial and to use juror research. In addition, the Court should strictly enforce the standard practices in this District designed to shield juror identities from the public.
It is standard and accepted practice in this and other districts for parties to conduct opensource internet research, including by viewing the public-facing social media accounts of potential jurors. See D.C. Bar Ethics Op. 371, Social Media II: Use of Social Media in Providing Legal Services (Nov. 2016) (“Competent and zealous representation . . . may require investigation of relevant information from social media sites of jurors or potential jurors to discover bias or other relevant information for jury selection. Accessing public social media cites of jurors or potential jurors is not prohibited . . . as long as there is no communication by the lawyer with the juror.”). This is appropriate and consistent with the jury selection process’s purpose of weeding out partial or unfair jurors and helping the parties exercise challenges. See Mu’Min v. Virginia, 500 U.S. 415, 431 (1991) (“Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.”). Moreover, the review of open-source information will mitigate the risk that a post-trial review will give rise to litigation. See United States v. Stone, 613 F. Supp. 3d 1, 41-44 (D.D.C. 2020) (defendant’s motion for new trial based on unfounded claim that juror had misrepresented social media activity denied in part because defense had necessary information from juror’s questionnaire with which to confront juror during in-person voir dire and chose not to).
The Court should make clear to the parties, however, that research beyond what is publicly available—especially if it results in any kind of contact with a potential juror—would infringe upon potential jurors’ privacy interests and could constitute improper ex parte communication. See Oracle Am., Inc. v. Google, Inc., 172 F. Supp. 3d 1100, 1103 (N.D. Cal. 2016) (jurors are not “celebrities or public figures” but “good citizens commuting from all over our district, willing to serve our country, and willing to bear the burden of deciding a commercial dispute the parties themselves cannot resolve. Their privacy matters. Their privacy should yield only as necessary to reveal bias or a reluctance to follow the Court’s instructions.”). The parties should thus be precluded, during jury selection and trial, from asking to “follow” or “friend” anyone, or make any analogous affirmative request, to gain access to posts or profiles that are not otherwise publicly available. D.C. Bar Ethics Op. 371; see also Local Criminal Rule 24.2(a) (“No party, attorney for a party, or person acting on behalf of a party or attorney, shall communicate directly or indirectly with a juror or an excused juror or a member of a juror’s, or excused juror’s, family during the trial.”). This prohibition should not apply, however, to mere passive viewing of publicly available information on sites like LinkedIn that may alert a potential juror to the fact that a particular person has reviewed his or her account. See, e.g., Standing Order Regarding Research as to Potential Jurors in All Cases Assigned to U.S. District Judge Rodney Gilstrap (E.D. Tex.).2 Finally, the parties should also be precluded from any form of investigation—whether online or otherwise— that could reasonably be perceived as vexatious or harassing.
The Court also should prohibit the use of information gained from juror research for any purpose other than voir dire, and even there, the Court should require that if a party intends to use any information gained through open-source research, the party does so in a way that does not reveal any juror’s identity. This limitation is consistent with this District’s practice and Local Criminal Rule 24.1(b), which dictate that jurors’ identifying information not be made public outside of the courtroom, and that in the courtroom, the Court and parties refer to jurors by number rather than name. See Local Criminal Rule 24.1(b) (“Officers of the Court and other parties who have access to juror names through the Court . . . shall not disclose names of prospective and sitting petit jurors to the public outside of open court, except upon order of the Court.”);3 Nordean, Trial Tr. at 571-574 (Dec. 20, 2022) (court admonishing an attorney, “It’s not appropriate to mention potential jurors’ names in court.”); Rhodes, Trial Tr. at 73 (Sept. 27, 2022) (court correcting attorney who used a juror’s name); United States v. Bannon, No. 21-cr-670 (CJN), ECF No. 172 at 3 (D.D.C. July 18, 2022) at 3 (court directing the parties before voir dire, “I very much expect that while we, of course, have the names of the jurors, that we will not and no one will mention the juror names on the public record during voir dire today. We will use only juror numbers”); Stone, ECF No. 242 at 4 (Oct. 25, 2019) (order adopting multiple protections for jurors, including a prohibition on sketch artists “drawing detailed sketches of any member of the jury”).
Finally, the Court should admonish the parties to handle juror questionnaires and jury sheets containing jurors’ identifying information with care, including by requiring each party to ensure that any individual the party permits to access these sensitive materials understands that he cannot publicly disclose the information. With respect to questionnaires, this is analogous to the restrictions that courts in this District place on handling of the jury sheets that reveal to the parties the potential jurors’ names and personal information during in-person voir dire. See United States v. Handy, No. 22-cr-96 (CKK), ECF No. 320 at 2-3 (D.D.C. Aug. 1, 2023) (in case involving civil rights conspiracy to obstruct access to reproductive health services, court tightly controlled jury sheets listing jurors’ names and identifying information, including that they must remain in the courtroom and be returned to the court at night to “be placed under seal and maintained in the Court’s vault”); id., Trial Tr. at 7 (Aug. 10, 2023) (explaining that reason for control over jury sheets is “to make sure that there are no issues, that the jurors are not interfered with, not influenced, not intimidated.”). Such a precaution is not only necessary to ensure that all parties handle sensitive juror information responsibly, but also so that the Court can assure prospective and seated jurors in this case that no party will improperly use their names or other identifying information.
There are other good reasons in this case for the Court to impose these restrictions and enforce this District’s standard prohibition against publicizing jurors’ identities. Chief among them is the defendant’s continued use of social media as a weapon of intimidation in court proceedings. In addition to the record before the Court from the Government’s previous filings, see ECF Nos. 57 & 64, just last week the defendant escalated his conduct and publicly attacked the trial judge’s law clerk in his pending civil fraud trial in New York State Supreme Court. The defendant did so by reposting on his Truth Social account—which has 6.4 million followers—a photograph of the law clerk and a United States Senator with the baseless caption, “[Senator’s] girlfriend, [Clerk], is running this case against me. How disgraceful! This case should be dismissed immediately!”4 As a result, the judge in that case was forced to issue an oral order that no party speak publicly about members of the court staff.5 Given that the defendant—after apparently reviewing opposition research on court staff—chose to use social media to publicly attack a court staffer, there is cause for concern about what he may do with social media research on potential jurors in this case. It is therefore necessary for the Court to employ the limited restrictions described above.
Even before the defendant’s most recent concerning conduct, as the Court is aware, the defendant’s supporters already had directed threats to the Court, see United States v. Shry, No. 4:23-mj-1602, ECF No. 1 at 3 (Criminal Complaint) (S.D. Tex. Aug. 11, 2023), and to grand jurors who returned an indictment in Fulton County, Georgia.6 For these and related reasons, another federal court presiding over a civil case involving the defendant recently found it appropriate to adopt measures to protect juror privacy that are far more restrictive than those proposed by the Government here. See Carroll v. Trump, No. 22-cv-10016, 2023 WL 2612260, at *2, *4 (S.D.N.Y. Mar. 23, 2023) (keeping jurors’ identities secret even 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”—“[ i]f jurors’ identities were disclosed, there would be a strong likelihood of unwanted media attention to the jurors, influence attempts, and/or of harassment or worse of jurors by supporters of Mr. Trump”). The Court should likewise protect prospective and selected jurors in this case from intimidation and fear through the limited measures proposed above.
Finally, jurors in this case are likely to receive substantial media and other public attention. In consultation with the United States Marshals Service, the Court may wish to consider measures to protect the jury in this case from scrutiny and harassment, such as arranging for jurors to gain discreet entry into and out of the courthouse. See, e.g., Stone, ECF No. 294 at 13 (Nov. 5, 2019) (court explaining to prospective jurors, “We will make arrangements . . . for the jurors who are selected to serve to come and go from the courthouse in a private manner so that you do not have to interact with other people or make your way through any crowds that gather at any of the public entrances.”). Courts in some of the other high-profile matters cited above took similar steps. Closer in time to trial, the Government may request specific additional protective measures for the jury.
II. Conclusion
To ensure an efficient process for selecting a fair and impartial jury in this case, the Court should use a written questionnaire shortly in advance of in-person voir dire. At the same time, the Court should adopt several of this District’s standard measures to protect the identities, privacy, and security of prospective and selected jurors.
Respectfully submitted,
JACK SMITH Special Counsel By: /s/Molly Gaston Molly Gaston Thomas P. Windom Senior Assistant Special Counsels 950 Pennsylvania Avenue NW Room B-206 Washington, D.C. 20530
______________
Notes:
1 The record in this case amply supports the proposed restrictions on the disclosure of juror information. Indeed, the Court has before it evidence sufficient to implement far more restrictive measures, including full juror anonymity and full sequestration. See United States v. Edmond, 52 F.3d 1080, 1091 (D.C. Cir. 1995) (per curiam) (explaining that juror anonymity may be warranted upon a showing of, among other things, “‘extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment’” (quoting United States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994))); Childress, 58 F.3d at 703 (“The court reasonably found the serious potential for juror intimidation during and after the trial that would justify the extreme precautions of anonymity and sequestration.”) Nonetheless, the Government is not proposing such measures at this time.
2 https://www.txed.uscourts.gov/sites/def ... Order%20-- %20Juror%20Research%20%28signed%29.pdf. This standing order in the Eastern District of Texas provides that parties are not “prohibited from conducting or causing another to conduct any type of online investigation merely because a juror or potential juror may become aware that his or her [electronic social media] is being reviewed,” and therefore the parties are not “prohibited from reviewing the LinkedIn accounts of jurors or potential jurors even if network settings would alert that juror or potential juror to the fact that a lawyer from the case has reviewed his or her LinkedIn account.”
3 Though it has long been standard practice in this District not to publicly disseminate juror names, recently, after a large number of high-profile trials, the Local Criminal Rules were amended in April 2023 to add this provision and make the practice the rule.
4 See Wall Street Journal, “Judge Admonishes Trump for Social Media Post Attacking Law Clerk” (Oct. 3, 2023), available at https://www.wsj.com/us-news/law/judge-dampenstrumps- enthusiasm-on-limiting-scope-of-fraud-case-30dfe11c.
6 See Washington Post, FBI Joins Investigation of Threats to Grand Jurors in Trump Georgia Case, (Aug. 18, 2023), https://www.washingtonpost.com/nationalsecurity/ 2023/08/18/fbi-joins-investigation-threats-grand-jurors-trump-georgia-case/ (citing an online post stating, “These jurors have signed their death warrant by falsely indicting President Trump”).
Five takeaways as Trump faces gag order in election interference case by Zach Schonfeld and Rebecca Beitsch The Hill 10/16/23 5:07 PM ET
A federal judge on Monday largely sided with the Justice Department in restricting former President Trump from attacking witnesses in his election interference case, as well as prosecutors and court staff.
While the coming order allows Trump to criticize President Biden, the Justice Department, the judge overseeing the matter and his prosecution in general, the former president will be blocked from making disparaging, inflammatory and intimidating comments about some parties in the Jan. 6 case.
Here are five takeaways on the decision.
Trump’s status as candidate clashes with status as defendant
The breadth of Trump’s First Amendment rights were put under a microscope Monday, as Judge Tanya Chutkan noted limits on free speech and the ways they can be narrowed for criminal defendants.
Chutkan noted there were already limitations placed on Trump’s speech as a condition for his release, including barring any effort to intimidate witnesses, jurors or court staff.
“He must comply with his conditions of release. He does not have the right to say and do exactly as he pleases,” she said.
Trump’s attorneys said any gag order was an attempt to limit the candidate’s First Amendment rights, but Chutkan said Trump has no absolute protection to free speech.
“First Amendment protections yield to the administration of justice and to the protection of witnesses,” she said, spelling out the contours of her coming order.
Trump attorney John Lauro complained of the “censorship” that would result from an order, calling the case “inextricably intertwined” with Trump’s presidential campaign due to timing.
“What’s happening in this courtroom right now will affect this country for years to come. President Trump is entitled to respond to it,” Lauro said. “These prosecutors want to prevent President Trump from speaking out on the issues of the day.”
But Chutkan shot back at the use of the term censorship.
“You keep talking about censorship like the defendant has unfettered First Amendment rights. He doesn’t,” she said.
Chutkan dissects Trump’s Truth Social posts
Chutkan read off several of Trump’s Truth Social posts during the hearing and referenced one post Trump made just hours earlier, saying some of the statements raised the possibility of violence.
In particular, Chutkan took aim at how Trump has repeatedly described special counsel Jack Smith as a “thug.”
“Tell me how the word ‘thug’ is justified here?” Chutkan pressed Lauro.
Chutkan also raised alarm about Trump’s recent post attacking the principal clerk of the New York judge presiding over Trump’s civil fraud trial. The post led that judge to impose a narrow gag order against the former president.
Chutkan at Monday’s hearing said attacking court employees poses “tremendous risk” to their safety, adding that they are “just doing their jobs.”
“I was deeply disturbed that just last week, while the motion for a gag order in this case was pending, Trump targeted a staff member of a judge in another case,” Chutkan said.
The two incidents nod to the frequency of the statements Trump makes about the case, many of which would likely cross the line of the coming order.
“I’m not confident that without some kind of restriction, we won’t be in here all the time,” Chutkan said.
She went on to bring up Trump’s post last month attacking Gen. Mark Milley, the then-chairman of the Joint Chiefs of Staff, who is a potential witness. Trump said Milley’s actions were so egregious that “in times gone by, the punishment would have been DEATH!”
Molly Gaston, a senior prosecutor on the case, said Trump’s Milley post was a message to all witnesses that “if you come after the defendant, he will come after you.”
Lauro insisted Trump wasn’t calling for Milley’s execution and that it wasn’t a threat. Lauro raised concerns about how, under the gag order, Milley and other witnesses could still attack Trump, but not the other way around.
Hypotheticals showcase latitude sought by Trump team
To assess the limits of the order the Justice Department was seeking, Chutkan rolled out a series of hypothetical statements Trump could make about his former Attorney General Bill Barr.
The exchange highlighted the deep divide between Trump’s legal team and prosecutors, with the former president’s lawyers backing the increasingly incendiary remarks suggested by Chutkan.
Lauro defended Trump’s right to make a number of comments about Barr, including that he should be “executed for his treasonous acts” and others encouraging him to “stay loyal” and that he “better keep his mouth shut.”
While Lauro said he thought encouraging Barr’s execution was not advisable, it should be permitted as it’s not a threat to Barr.
Lauro said another statement made by Trump that encouraged Barr to stay loyal in order to gain a position in his administration if he were reelected is permissible because part of the campaign is letting the country know who he would hire. Lauro also said telling Barr to “keep his mouth shut” should be allowed if it was stated in response to Barr’s broader criticisms of Trump.
As a final question, Chutakn asked Lauro if Trump should be able to say Barr “is a slimy liar and can’t be trusted.”
“Well, I’m not going to say truth is a defense,” Lauro joked.
The Justice Department argued that each of the first three remarks defended by Lauro would be an intimidating remark about a witness, while the last was attacking the character of a witness and would be a comment that could color how he would be perceived by jurors.
Chutkan loses patience with political rhetoric in court
Since the indictment, Chutkan has battled to keep separate the legal debates and politics surrounding the case.
Wednesday’s hearing was no different, even as Rep. Marjorie Taylor Greene (R-Ga.) showed up at the courthouse to support Trump. It all built on tensions from earlier hearings in which Chutkan and Lauro have battled.
“Politics stops at this courthouse door,” Chutkan said at one point in an exchange with Trump’s attorney.
Lauro began his comments at the hearing by reminding Chutkan that “we’re in the middle of a campaign,”
“I know, Mr. Lauro, I know,” Chutkan replied.
Chutkan insisted she would treat Trump like any other defendant, repeatedly scolding Lauro for echoing his client more than answering her questions.
Lauro at times accused prosecutors of infringing upon Trump’s constitutional rights and “veering towards tyranny.”
“Please, Mr. Lauro, let’s tone this down,” Chutkan chimed in after the latter comment.
Lauro responded by saying his voice was toned down.
“I would ask that you answer my questions,” Chutkan replied.
The judge on Wednesday again rejected Lauro’s pleas to delay the trial date until after the 2024 election, which Lauro said would resolve the free speech issues.
“This trial will not yield to the election cycle, and we’re not revisiting the trial date,” Chutkan said.
Trump’s first out-of-court statements comply
Within hours of the hearing, Trump and his campaign criticized the gag order while raising money off news of the decision.
The attacks illustrated how Trump remains able to lash out at President Biden and voice concern over his prosecution — and suggested his team was trying to comply with it.
“Today’s decision is an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden,” a campaign statement read.
At a campaign event in Iowa later in the day, Trump said he’ll appeal the order and broadly attacked the Justice Department as “weaponized.”
“I’ll be the only politician in history that runs with a gag order where I’m not allowed to criticize people. Can you imagine this?” Trump said.
Notably, none of the various statements name Smith — whom Trump is barred from attacking under the new order — while criticizing Biden and law enforcement, both of which the judge said are fair game.
“This is not about whether I like the language Mr. Trump uses,” Chutkan said. “This is about language that dangers the administration of justice.”
Federal Judge DROPS THE HAMMER on Trump THREATS by Ben Meiselas MeidasTouch Oct 16, 2023
MeidasTouch host Ben Meiselas reports on the gag order hearing in Washington DC federal court today where Judge Tanya Chutkan just issued a gag order against Donald Trump prohibiting him from further threats against the Special Counsel and its staff and the court and its staff.
Transcript
I'm Ben Meiselas from the MeidasTouch Network. Federal Judge Tanya Chutkan just granted a gag order be imposed on Donald Trump, prohibiting Donald Trump from posting, or reposting, or just generally attacking, the special counsel, the special counsel's staff, their family, the court, the court staff, and the cour'ts staff's family, the same way Donald Trump threatened the court staff in the New York attorney general civil fraud case.
Folks, this order was just handed down by Judge Tanya Chutkan in an explosive hearing in Washington DC in connection with Special Counsel Jack Smith's criminal prosecution of Donald Trump for trying to overthrow the results of the 2020 election. At one point during this hearing, when Donald Trump's lawyers claimed Donald Trump's been fully compliant with everything, and he's made no threats at all, Judge judge Tanya Chutkan even laughed in their faces, and said, "I take a very different view on that than you do," and then proceeded to go through all of Donald Trump's various posts on social media where he threatened witnesses, where he threatened the court, where he called Special Counsel Jack Smith 'a thug'. And as Donald Trump's lawyers tried to argue, 'Well, this is just Donald Trump engaged in political speech; he's just trying to campaign," Judge Chutkan would give hypotheticals, like, "You think calling for the execution of a former military General who is a witness in this case, you think that's part of his campaigning? You think calling a prosecutor 'a thug' is a part of Donald Trump's campaign?"
And by the way, Special Counsel Jack Smith's team, that asked for this hearing, made it very clear at the outset, "Look, Donald Trump can do whatever he wants in attacking Joe Biden. President Biden has absolutely nothing to do with this case. Go at it. Criticize President Biden. But where it comes to attacking people involved in this case, Donald Trump should not be treated in any way like he is above the law." To which the defense counsel lawyers, Trump's lawyers, basically said, this is a direct quote as transcribed by Scott McFarland, reporter, who was in the court, quote, "We have to tolerate a bit of colorful speech in political debates." And then Judge Chutkan responded, "So if there is violence, or threats ,that's something that we need to tolerate? That's something that we need to accept?" To which Donald Trump's lawyers say, "Well, there's other ways that we can deal with that," referring to "You can criminally charge him for that conduct." Well, if you can criminally charge him, you could also impose a gag order as well on him.
And so, the Judge also offered other hypotheticals. And the Judge said," For example, let's take a look at this hypothetical: 'Bill Barr should be executed for his many treasonous acts.' Do you think that that is the type of speech that's appropriate? You think it is just colorful language?" And Donald Trump's lawyers, rather than basically stating that is not acceptable speech, that it would be horrific, Donald Trump's lawyers go, "I would just advise my client not to do that." "You would advise them not to do it? That is called a criminal threat."
Judge Chutkan gave other hypotheticals as well. One of the ones that she basically said is, "What if Donald Trump said about a witness, 'I hope this witness stays loyal, and keeps his mouth shut because otherwise bad things could happen happen, or they may not get what they're looking for in the long run?'" And to that, Donald Trump's lawyer said, "Oh, that's perfectly acceptable speech." And Judge Chutkan was not having that at all.
Just to remind you of like who's here in this courtroom, why we're here: so you have Jack Smith's team there made up of lawyers from the Special Counsel's office. You have Molly Gaston, Thomas Wyndham, and an FBI agent named Jamie Garmin. They're some of the leads on Special Counsel Jack Smith's team in the DC case. On Trump's side, you have John Lauro, Greg Singer, Todd Blanche, Emil Bove, and Stephen Weiss. So a lot of lawyers there for Donald Trump as well. And the hearing began first and foremost with Judge Chutkan basically saying, "I'm not moving this trial date, okay? Trial is taking place in March, come hell or high water, so don't try to use arguments here today, Trump's lawyers, to try to continue this trial, or claim that trial shouldn't take place in March, because that's precisely what Donald Trump's lawyers tried to do throughout the proceeding. They said, "Well, Judge if we just move this till after the 2024 election, there wouldn't be any issues at all, because Donald Trump is just engaged in normal campaigning." And she said, "Enough! Stop saying that. The trial's going in March of 2024." She also addressed this issue upfront about potential polling of the veneer, the Washington DC jury pool. And she said, she's not really going to place any restrictions on that, and told the prosecutor there, "I'm not placing any restrictions on that. Ultimately, I want Trump's lawyers to submit the methodology if they're going to try to conduct a poll for a motion to change venue, to try to claim that somehow they can't get a fair trial in Washington DC, but I'm not imposing any further restrictions there." So, you know, she she's just being even-keeled, and saying, "Look, that's just the way it's going to be."
And as the proceeding takes place, you've got John Lauro, the lawyer for Donald Trump, basically says, "Look Judge, what you've been doing here has been working, so there really is no reason to change any of your processes and procedure. I know special counsel Jack Smith has requested a limited gag order, but Donald Trump's done nothing wrong at all." All the court observers: Josh Gerstein, Kyle Cheney, Scott McFarland, they've all reported that Judge Chutkan then literally laughed in the face of Trump's lawyer, and said, "I have to take issue with you there, Mr Lauro." And Josh Gerstein says there's laughter in the courtroom as well when Lauro then tried to say, "Look, I served on the neighborhood commissioner in Washington DC here, so I love this city. There's there's no threats that are going to happen against the city." To which Judge Chutkan responded, quoting one of Donald Trump's posts, "Oh, were you a commissioner here before or after it became a 'filthy, crime ridden city,'" referring to Donald Trump's post. And there was laughter in the courtroom.
Hugo Lowell @hugolowell Judge Chutkan asks Trump lawyer John Lauro why Trump has to call prosecutor a "thug" to advance point that this politically motivated? Lauro says what are you supposed to do in face of oppression? Chutkan: "let's tone this down" Lauro: "If your honor wants to censor my speech"
Kyle Cheney @kyledcheney MORE: Chutkan continues to chafe at Lauro's speechifying. "Obviously you have an audience other than me in mind," she says, still pressing him to explain why Trump needs to call prosecutors "thugs."
One of the things Judge Chutkan said is, "If you're claiming that Donald Trump is saying these things as part of his campaign, what purpose of his campaign does it serve by calling a prosecutor a 'thug,' and going after their family?" And then John Lauro basically goes, "What am I supposed to do in the face of this oppression, Judge? I'm being oppressed. My client's being oppressed." And Judge Chutkan says, "Can we please tone this down a little bit?" And then John Lauro says, "What --are you trying to censor me? Are you trying to censor my speech?" And then Judge Chutkan says, "Calm down." This is a direct quote from Kyle Cheney who has done a great job reporting in the courtroom. He goes, this is what Judge Chutkan says: "Obviously, Mr Lauro, you have an audience today, and in general, other than me, other than the court in mind, but please tone it down." And John Lauro's like, "I am toned down. I am toned down."
Kyle Cheney @kyledcheney CHUTKAN should be permitted to attack Jack Smith's spouse or family. LAURO says he "is certainly entitled to describe why he believes this prosecution is politically motivated."
Kyle Cheney@kyledcheney CHUTKAN says she was "deeply disturbed" that Trump posted an attack and a photo of Judg4e Engoron's clerk in New York. LAURO says he would have advised Trump not to do that because it's not appropriate in course of court proceeding.
One of the things Judge Chutkan focused, on as well, was that she was very disturbed about the behavior of Donald Trump in the New York civil case, in the New York attorney general case, and how he threatened the Judge's law clerk. And judge Chutkan's like, "Without a gag order, how am I confident he's not going to do it here?" And then John Lauro's like, "Just trust me; trust me. It's not going to happen again. It's different here with me in Washington DC, so you don't have to worry about it at all."
Then one of the key things that Judge Chutkan said is, "Look, Trump is a criminal defendant. He's facing four felony charges. He is under the supervision of the criminal justice system. And he must comply with the conditions of release. He doesn't have the right to say and do exactly as he pleases." Judge Chutkan also says, "This trial will not yield to the election cycle. We will not revisit the trial date. And no one is above the law in my courtroom. Period. Full stop."
Hugo Lowell@hugolowell Replying to @hugolowell But will prevent posting or reposting attacks against Special Counsel, staff, court staff or personnel. Can't imagine any other case to call prosecutor a "thug" simply because running campaign. Prohibit statements on potential witnesses or expert testimony
HugoLowell @hugolowell Replying to @hugolowell Chutkan won't impose restrictions on: criticizing govt generally, DOJ or Biden admin, or statements communicating the case to be politically motivated. Also no restriction on jury pool or DC district venire
Judge Chutkan took a brief recess, and she imposed a gag order against Donald Trump. The penalties for violating the gag order would be sanctions. And sanctions could be as high as incarceration. But sanctions can be monetary sanctions; could be moving the trial date up, there's numerous sanctions. But Donald Trump will now be prohibited from attacking on social media or elsewhere, as he's been doing, Jack Smith, and the court. He can't repost stuff like that as well. And if he does that, you know, we will see what the ramifications are. But Judge Chutkan, I think, managed her courtroom pitch perfect today. She was very balanced. Took the arguments. Took a recess. And came back and made that grant partially granting the limited gag order that was being requested by Special Counsel Jack Smith's team.
We will keep you posted as we learn more here on the MeidasTouch network. Have a great day.
Will Judge Chutkan Gag Trump amid His Escalating Violent Rhetoric? Trump was right when he said his supporters listen to him “like no one else.” 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.”
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.
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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.'
Did Donald Trump ALREADY violate Judge Chutkan's gag order? The answer might surprise you. by Glenn Kirschner Oct 17, 2023 #TeamJustice
Within hours of DC federal district court judge Tanya Chutkan imposing a gag order prohibiting Donald Trump from saying or posting anything about the witnesses, the prosecutors or the court staff, Trump was already making inflammatory statements at a rally in Iowa, and putting reckless posts on his social media platform.
This video reviews Trump's statements to see if any of them violate Judge Chutkan's gag order.
Transcript
so friends did Donald Trump already violate the gag order that judge chuin just issued by some of what he said at his Iowa hate rally and some of what he posted on his third rate social media platform the answer might surprise you let's talk about it because Justice matters [Music] hey all Glen kersner here so friends I was in federal district court in Washington DC on Monday watching the Trump gag order hearing I watched judge Tanya chuin issue the oral gag order and she just followed it up now with a slightly more specific and more detailed written gag order let's start with the new reporting this from axios Headline chuin formally issues gag order in Trump's January 6th case and that article begins US District Judge Tanya chuin on Tuesday formally issued a gag order on former president Trump in his January 6th criminal case chuin wrote in the order that Trump's statements pose sufficiently grave threats to the Integrity of these proceedings that cannot be addressed by alternative means the narrow gag order bars interested parties which include Trump from making any public statements targeting the special counsel or his staff Witnesses or Court staff Trump's lawyers filed a notice of intent to appeal chuin order on Tuesday now friends here is Judge chuin very short three-page opinion and Order and I'm just going to read two paragraphs from it and then we're going to talk about Donald Trump's brand new statements after this gag order was issued and we're going to try to figure out if he's already violated judge chuin gag order so I'm going to start on page two in order to safeguard the Integrity of these proceedings that is Donald Trump's criminal prosecution in Washington DC for trying to overturn the results of the 2020 presidential election in order to safeguard the Integrity of these proceedings it is necessary to impose certain restrictions on public statements by interested parties that includes the defendant Donald Trump Undisputed testimony cited by the government the prosecutors demonstrates that when defendant Trump 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 prosecutors filed the instant motion the motion for a gag order defendant Trump 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 one witnesses will be intimidated or otherwise unduly influenced by the process Prospect of being themselves targeted for harassment or threats and two 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 and then turning to page three here is the gag order itself ordered that all interested parties that includes Trump and the attorneys the prosecutors and the defense attorneys all interested parties are prohibited from making any public statements or directing others to make any public statements that Target one the special counsel Prosecuting this case or his staff two defense counsel or their staff three any of this Court's staff or other supporting Personnel or for any reasonably foreseeable witness or the substance of their testimony and Friends within hours of Judge chuin issuing this gag order what did Donald Trump do well he held a hate rally in Iowa and he started to talk about the gag order and said some things that we're going to run through now and we're going to try to decide whether what Donald Trump said at his rally violates this gag order or not now I'm not going to inflict his voice on you but here is just some of what Donald Trump said at a rally hours after judge chuin issued this gag order so Trump first says that the gag order is totally unconstitutional he then moves on to say uh the judge doesn't like me and he absurdly adds that her whole life is not liking me and then Trump adds that the gag order says that he can't speak badly about his opponent so let's take those three statements and try to see if any of them violate judge chuin gag order first of all when he says the gag order is totally unconstituted ution that doesn't violate the gag order in fact he has filed a notice of his intent to appeal the gag order he then goes on to say the judge doesn't like me well that doesn't violate the gag order either and even his absurd addition to that that her whole life is not liking me that's what judge chuan's life revolves around her not liking Donald Trump Nar narcissism much Donald but again that doesn't violate the gag order in fact interestingly judge chuin said that the defendant can't make statements about Jack Smith the special counsel or his staff and then she said and he can't make statements about the court staff or Court Personnel but she didn't specifically say he can't rail against the judge feels like she kind of left that open to Donald Trump so again I don't think that violates the gag order and the third thing he said is the gag order says that I can't speak badly about my opponent well that's flat out false because during the hearing it was clear and judge chuin said this several times you can rail against your political opponent all you want Joe Biden Mike Pence others running for the presidency you can still criticize them talk about them rail against them so he just Flatout lied to the rally goers when he said the gag order says I can't speak about badly about my opponent but lying about the gag order I don't think constitutes technically speaking a violation of the gag order okay now let's turn to Donald Trump's post on his third rate social media platform of course it's all in caps because he has to be screaming at everybody all the time and here is what he posted not long after judge chuin issued her gag order
Donald J. Trump @realDonaldTrump DO YOU THINK I WILL BE GAGGED? YOUR FAVORITE PRESIDENT? HELL, NO I WILL NOT BE SILENCED. CORRUPT AND EVIL BIDEN JUDGE CHUTNEY HAS DARED TO PUT HERSELF ABOVE THE FIRST AMENDMENT! I THOUGH THIS WAS AMERICA BUT APPARENTLY D.C. IS NOTHING BUT A BANANNA REPUBLIC WHERE THE MONKEYS ARE RUNNING THE ASYLUM NOW, BUT FEAR NOT. THEY CANNOT SILENCE TRUMP! THEY WILL NOT SILENCE TRUMP, BECAUSE WE ALL KNOW THAT WE HAVE MORE RIGHTS THAN JUST THE FIRST AMENDMENT WE CAN USE TO MAKE SURE THEY DON'T TAKE THEM FROM US!! TRUMP 2024!!
DO YOU THINK I WILL BE GAGGED? YOUR FAVORITE PRESIDENT? HELL, NO I WILL NOT BE SILENCED. CORRUPT AND EVIL BIDEN JUDGE CHUTNEY HAS DARED TO PUT HERSELF ABOVE THE FIRST AMENDMENT! I THOUGH THIS WAS AMERICFA -- because you always have to have a handful of typos in a Donald Trump post -- I THOUGH THIS WAS AMERICA BUT APPARENTLY D.C. IS NOTHING BUT A BANANNA REPUBLIC WHERE THE MONKEYS ARE RUNNING THE ASYLUM NOW, BUT FEAR NOT. THEY CANNOT SILENCE TRUMP! THEY WILL NOT SILENCE TRUMP, BECAUSE WE ALL KNOW THAT WE HAVE MORE RIGHTS THAN JUST THE FIRST AMENDMENT WE CAN USE TO MAKE SURE THEY DON'T TAKE THEM FROM US!! TRUMP 2024!!
now friends I'll set aside Donald Trump's inflammatory statements his obvious racism but I do want to touch briefly on his not so thinly veiled call to violence because what do we think Donald Trump meant when he said that we have more rights than just the first amendment Free Speech rights we have other amendments we have other rights we can use to make sure they don't take our rights from us what other amendments what other rights might he have been talking about I don't think he was referring to the third amendment's prohibition against quartering soldiers in our homes obviously it's a thinly veiled reference to the second amendment's right to bear arms he said we have other rights that we can use to make sure they don't take our rights from us you know Donald Trump is is always inciting violence but the question for today is does anything in that absurd post violate judge Chin's gag order well let's see he doesn't talk about Jack Smith or his staff he doesn't talk about the judge's staff or Court personnel and he doesn't talk about the witnesses or the subject matter of their testimony so as stupid as that post is it doesn't seem like it violates the gag order now it will all go into the Donald Trump bucket of Badness what do I mean by that well inevitably Donald Trump will directly violate the gag order we know that's coming friends don't we and so all of these statements the one he made the ones he made at the Iowa hate rally the ones he posted on his third rate social media platform it will all go into the Donald Trump bucket of bad and it will be hauled into court When Donald Trump does violate the gag order and the prosecutors will be able to rightly argue you know judge when he criticized you and said those horrible things and mocked you and said racist things and said your whole life was about not liking Donald Trump we didn't ask you to sanction him because it was not a direct violation of the gag order when he lied about the gag order and said the gag order says I can't criticize my opponents that was obviously a lie but we didn't come to you and say judge sanction him and when he posted all of these things that seem to be designed to inspire and incite violence we didn't come to you and ask you to impose sanctions because it didn't violate the gag order as bad as all of those things are but judge now he has violated the gag order and friends we know that day is coming he will say something about Jack Smith or his team or the court staff or the witnesses or the subject matter of their testimony you it's it's just a matter of time but here's what I want to end with friends because I find this really perhaps most interesting remember how a couple of weeks ago up in New York judge en Goron issued what I call a snap gag order When Donald Trump posted a picture and outed and doxed and identified one of the judges law clerks lied about her said she was Chuck Schumer's girlfriend and that she's the one running the case in New York against Donald Trump and it's outrageous and the case should be dismissed and judge and Goran instantly gagged him issued a gag order saying you may not speak or post about my staff the court staff and since that time Donald Trump hasn't said or posted one word about Judge and Goron's Court staff and even though judge chuin uh gag order is in its infancy it's brand new Donald Trump has made a bunch of statements and posted a bunch of things since Judge chuin issued the gag order and based on the conversation we've just had it doesn't look like Donald Trump has yet violated that gag order either so if he didn't violate judge Ang goran's gag order and he hasn't yet violated judge chuan's gag order even though he's had an opportunity to going back to his post when he says they cannot silence Trump well it looks like maybe they can silence Trump at least from talking or posting about court staff the prosecutors the witnesses and the subject matter of their testimony because thus far in the couple of weeks that we've had now these two gag orders in place guess what Donald Trump has been silenced at least in as much as making statements that would directly violate the gag orders and that's a good thing because protecting the court staff and protecting the prosecution team and protecting the witnesses and preserving the Integrity of the upcoming trial you know protecting and promoting the due administration of justice matters friends as always please stay safe please stay tuned and I look forward to talking with you all again tomorrow
