A federal judge is expected to consider on Monday whether to impose a limited gag order on Donald Trump in the criminal case over his efforts to overturn the results of the 2020 election, potentially restricting what he can say about potential trial witnesses and prosecutors.
The decision for US district judge Tanya Chutkan at the hearing, scheduled for 10am in Washington, comes with unique challenges given the potential for Trump to test the limits of a protective order or even flout it outright – opening the explosive sanctions question of whether to jail him in response.
Since Trump was charged in August with conspiring to obstruct the peaceful transfer of power, prosecutors have complained in court filings that Trump has made dozens of prejudicial statements that could intimidate people from testifying against him at trial and poison the jury pool.
The filings cited, in particular, Trump’s posts attacking his former vice-president, Mike Pence, for testifying during the criminal investigation, and posts suggesting the former chair of the joint chiefs of staff Gen Mark Milley, another potential trial witness, should be executed.
“In times gone by,” Trump wrote in one post of Milley and his move to insulate the US defense department at the end of the Trump administration, “the punishment would have been DEATH! A war between China and the United States could have been the result of this treasonous act. To be continued!”
The proposed gag order drafted by prosecutors in the office of the special counsel, Jack Smith, would limit Trump and his lawyers from making public statements about the identity or testimony of prospective witnesses, and allow Trump to say only he denied the charges “without further comment”.
Trump’s lawyers have responded by saying prosecutors were absurd to argue high-profile public officials would be intimidated by his social media posts, and characterized the gag order request as infringing on Trump’s first amendment rights as he makes another bid for the White House.
The motion for a protective order against Trump marks a tricky situation for the judge, because ruling in favor of prosecutors could also inadvertently play into Trump’s hands.
There is little precedent for how Chutkan should approach the issue of a gag order, balancing the strong constitutional protections for political speech in a case that could affect the outcome of the presidential election against ensuring the proper administration of the judicial process.
Trump and his lawyers have made clear for months that they want the public to falsely think the 2020 election case is about whether he had a first amendment right to say it was stolen, even though the charges are actually concerned with obstruction and defrauding the United States.
If Chutkan grants the gag order, and directly restricts what Trump can say, that could be used by the Trump campaign as additional fodder to malign the case as politically-motivated or unfair – which could have the same prejudicial effect on the case prosecutors were trying to prevent.
There is also the question of what Chutkan would do if Trump decided to skirt the edges of the order or defy it completely. Even if Trump was fined for contempt, Trump could decide it was just a price of doing business, and Chutkan might be confronted with the prospect of jail to enforce it.
That step would be legally and politically explosive and, rather than risking such a course, Chutkan could decide to cycle through other options to limit Trump from attacking prosecutors or potential trial witnesses; for instance, she has previously said she might move up the trial date.
The trial in this case is currently set to start on 4 March 2024, a day before the busiest date on the presidential primary election calendar, when 15 states are scheduled to hold Republican primaries or caucuses.
