Trump Appeals Gag To Protect First Amendment Right To Intimidate Witnesses

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(Photo by Brendan McDermid-Pool/Getty Images)

In 1991, the Supreme Court ruled that it is a legitimate exercise of state power to ban trial participants from speech which poses a “substantial likelihood of materially prejudicing” a judicial proceeding. That case, Gentile v. State Bar of Nevada, involved a ban on attorneys commenting on pending trials. But for 30 years, Gentile has been understood to set the standard for imposing gag orders on all parties to a case, not just the attorneys.

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What Donald Trump’s appeal of his gag order in the election interference prosecution presupposes is … maybe it didn’t?

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Maybe Gentile only applies to lawyers. Maybe the proper test is the Brandenberg incitement standard. Maybe under Supreme Court decisions from 1976 and 1978, Trump has the same rights as any member of the press to discuss a pending case. Maybe his status as a presidential candidate allows him to intimidate witnesses at will.

Or maybe not.

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These are arguments which Trump’s lawyers made at the trial level with Judge Tanya Chutkan. Quite frankly, they sucked then, and they continue to suck now. The only difference is that Trump has became even more brazen in his insistence that prosecutors “did not include any evidence that any witness, prosecutor, or court staff had experienced any threats or harassment from third parties after President Trump’s statements.”

Trump repeats this claim several times, carefully stepping around the fact that a woman named Abigail Shry is under indictment after leaving a voicemail for Judge Chutkan saying “Hey you stupid slave n—– … You are in our sights, we want to kill you.” Yes, technically, that’s not a threat to “any witness, prosecutor, or court staff.” But it’s not “speculative,” as Trump argues repeatedly.

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In fact, prosecutors and the trial court both noted that Trump’s social media posts provoked waves of harassment for election officials and poll workers in the wake of the 2020 election as he sought to sow the claims of vote fraud which formed the basis of the election interference charged in this case. Trump’s lawyers scoff that this was “almost three years ago, and long before this case was brought,” which is basically like a sealed juvenile record, if you think about it. (But not too hard.)

Trump continues to mischaracterize the “heckler’s veto,” claiming that his free speech rights cannot be abridged just because his goons might hear him say that Gen. Mark Milley ought to be executed and then take it upon themselves to make it happen. Which is wildly offensive, but perhaps less so than Trump likening himself to civil rights protestors wrongly arrested for disturbing the peace by exercising their First Amendment rights. After all, this is a case which charges Trump with violating a Reconstruction Era statute by seeking to toss out 20 million votes on an inchoate theory that there must have been vote fraud in majority-Black cities.

Trump also argues that Judge Chutkan’s order violates the sacred right of “100 million Americans” to hear Trump call Bill Barr a “sluggish” loser:

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The Gag Order violates President Trump’s most fundamental First Amendment rights. Even worse, it gives no consideration to the First Amendment rights of President Trump’s audience, the American public, to receive and listen to his speech.

Never mind that that statistic includes the 94 million bots and actual users from platforms Trump got booted off of in January of 2021.

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These are profoundly unserious arguments, all of which failed at the trial court. Although, to be fair to Lauro, once your client has forced you to defend his right to attack the prosecutor’s wife on social media, you’re a little bit boxed in when you try to argue that he has a fundamental First Amendment right to call Special Counsel Jack Smith “Deranged.”

There’s also the “bad fact” that the second Judge Chutkan administratively stayed the gag order, Trump took to Truth Social to complain that cooperative witnesses are “weaklings and cowards, and so bad for the future our Failing Nation. I don’t think that Mark Meadows is one of them, but who really knows?”

And Trump’s vicious attacks on Michael Cohen, who testified against him in New York, are a pretty fair indicator of how he’ll behave in this case if allowed to persist unmuzzled.

The gag order remains stayed through oral argument on November 20. Whether Judges Millet, Pillard, and Garcia will be swayed by the same arguments which failed to convince Judge Chutkan is unclear. But perhaps this brief is aimed a little further down First Street after all.

US v. Trump [Circuit Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

Topics

Donald Trump, First Amendment, Government, Tanya Chutkan