Judge Tanya Chutkan may decide as soon as Friday whether to impose a full protective order prohibiting Donald Trump and his lawyers from making public any of the evidence in the federal election fraud case against the former president, or whether to give him more latitude.
But however that shakes out, a broader and more consequential issue may still be looming: Are there any limits to what Trump and his lawyers can say to criticize the case, impugn special counsel Jack Smith’s prosecutors or heap scorn on the judge? Or is Trump exempt from normal strictures because he’s running for president?
The local rules governing federal court in Washington, D.C., are surprisingly stringent. In order to avoid interfering with a fair trial or prejudicing “the administration of justice,” lawyers are prohibited under rule 57.7 from making any public statement about “the identity, testimony, or credibility of prospective witnesses,” and “any opinion as to the accused’s guilt or innocence or as to the merits of the case or the evidence in the case.”
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Every jurisdiction has a set of local court rules, which are usually made by a committee of judges and lawyers, and then evolve over time. This particular Washington rule appears to be stricter than most, and some legal scholars believe the language is unconstitutional on free speech grounds. But it only applies to the lawyers, and the real question remains what Trump, the defendant, can get away with.
The Washington rules also allow a judge to issue a special order in “a widely publicized or sensational criminal case,” restricting what the lawyers — and the defendant — can say in public. Those sorts of rules have passed constitutional muster, as long as they are very specific. Such a gag order was imposed in 2019 on Trump adviser Roger Stone after he posted a photo of the federal judge presiding over his Washington trial with crosshairs superimposed over her image.
Legal experts say Chutkan faces an almost impossible dilemma, though, should she decide to impose any restrictions: How can you limit the speech of a leading candidate for president? And what would she do if Trump failed to comply with the order?
“Judge Chutkan is being put in an extremely difficult position,” said Peter Zeidenberg, a longtime criminal defense attorney based in Washington. “I’m glad it’s her having to decide, and not me.”
After months of directing vitriol at Smith, Trump this week impugned the judge, saying on his Truth Social site: “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!”
Experts say statements like that go to the heart of why there are rules about pretrial public comments, because the point is to prevent either side from seeking to influence the prospective jury pool. But like so much with Trump, experts say this case is different.
“In this unique situation, the judge has to balance Trump’s interest as a candidate and also the public interest in hearing him not only on policies, but his position on guilt or innocence,” said Stephen Gillers, a law professor and expert in legal ethics at New York University.
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Especially given that the special counsel charged Trump in an extremely detailed “speaking indictment,” he said, it would be unfair to bar the former president from responding in public.
“The public wants to know his story,” Gillers said.
That said, a criminal defendant granted release on bail doesn’t have the same constitutional rights as everyone else, said Andrew Weissmann, a former prosecutor and NBC News legal contributor who was lead prosecutor in then-special counsel Robert Mueller’s Russia investigation. Judges can and do impose all sorts of conditions on criminal defendants, such as drug testing or a prohibition on carrying firearms.
Most defendants probably couldn’t get away with insulting the judge in their case, said Arthur Berger, a Washington lawyer and legal ethics expert. But for Trump, Berger and others agree, the red line is likely to be statements that could be perceived as witness tampering or threats, such as Trump’s recent post announcing, “If you go after me, I am coming after you,” which he said was not aimed at prosecutors or the judge.
“You can say, ‘I think this court stinks,’” said David Schoen, a criminal defense lawyer who represented Trump in his second impeachment. “You can’t corruptly try to influence a particular witness.”
If Trump did make statements deemed to cross a line, Gillers said, the judge could impose a gag order after giving each side a chance to weigh in — but it would have to be narrow and specific to pass constitutional muster.
And then she would have to enforce it. She could threaten to hold Trump in contempt, which carries with it penalties of fines or jail. Or she could threaten to change the terms of his release and jail him that way. Either scenario is hard to imagine. Would the Secret Service follow Trump to jail?
“She wouldn’t want to place herself in a situation where he calls her bluff and she can’t carry it out,” Berger said.
“I just can’t imagine that she’s going to lock him up,” Schoen said, echoing the view of other lawyers interviewed. “I think they’re going have to live with it.”
As for his lawyers, the experts said, Trump lawyer John Lauro appeared to have violated Washington local rule 57.7 in his appearances last week on “Meet the Press” and other news shows, because he took direct aim at the merits of the case against his client while discussing some of the evidence. But many said that rule is not often rigidly enforced.
“If you read it literally, nobody could say anything,” Berger said.
Muzzling Trump or his lawyers “would reinforce his First Amendment complaints,” said Bruce Rogow, who represented Stone. “The indictment was a ‘speaking indictment’ so why shouldn’t the defendant’s counsel or the defendant have some latitude in speaking? Jurors will know all about this case from the press long before they get in the box.”
Source: | This article originally belongs to Nbcnews.com
