Hearing on limited gag order for Trump

She views a gag order as “destroying the free speech rights of President Donald Trump,” she said in an interview.

“I wanted to see if this is what this judge is really going to do,” Greene said.

  MSN

As if she wouldn't know if she weren't there.

Trump is already under one gag order while he fights another. This month in Trump’s ongoing civil fraud trial in New York State Court, Judge Arthur Engoron barred Trump from making public comments about his court staff.

[...]

Donald Trump posted on Sunday the kind of rant about his federal election obstruction case that prosecutors in the case are looking to restrict through a gag order.

Writing on Truth Social shortly before midnight, Trump attacked the judge in the case, Tanya Chutkan, calling her “a highly partisan Obama appointee” who “should recuse herself based on the horrible things she has said.”

[...]

Trump, in his post, also falsely claimed that the gag order sought by prosecutors would make it “impossible” for him “to criticize” President Biden and people working in the federal government, and would “take away my First Amendment rights, and my ability to both campaign and defend myself.”

[I]n 1991 the Supreme Court made it clear that courts can restrict extrajudicial statements that pose a “substantial likelihood of materially prejudicing” a judicial proceeding without running afoul of the First Amendment’s free speech guarantees. That precedent, laid out in Gentile v. State Bar of Nevada, applies to every person in the U.S. criminal justice system who is a defendant in a criminal case, including a former president and current presidential candidate.

However, there is one glaring example of how the laws are not being applied equally to Trump, compared to other criminal defendants. In 30 years as a federal prosecutor, I cannot recall ever seeing a defendant on pretrial release in a felony case threaten the life of a witness — or, in Trump’s case, suggest that a witness should be executed — and remain on pretrial release. The judicial system’s casual treatment of Trump’s unending threats, harassment and intimidation of witnesses is as perplexing as it is alarming.

From the moment Trump was criminally indicted, he has been endangering witnesses with impunity.

[...]

Most recently, as he entered a Manhattan courtroom last Monday to attend the trial in New York Attorney General Letitia James’ case against him, his sons and the Trump Organization, Trump stated, “You ought to go after this attorney general.” He did not specify who should “go after” James, but we need only recall how his supporters reacted to his directive to “stop the steal” on Jan. 6 to see how dangerous such a call is.

  Glen Kirschner

Some observers say that Donald Trump wants and may even need a gag order fight reviewable by appellate courts to delay his trial. The puzzle facing Chutkan is that, as the leading Republican candidate for president in 2024, Trump is not any ordinary defendant.

“Any effort she makes to control him, no matter how justified, will prompt legal challenges that will invite appellate review and fuel his return to the presidency,” former Obama White House counsel Gregory B. Craig has observed.

  MSN

And delay the case.

Federal prosecutors are asking Judge Tanya S. Chutkan to bar attorneys from making or authorizing statements substantially likely to prejudice the case, including statements by them, Donald Trump or surrogates about the identity, testimony, or credibility of potential witnesses, as well as disparaging and inflammatory or intimidating statements about any party, witness, attorney, court personnel, or potential juror in the case.

  MSN

In this morning's hearing, Judge Chutkan said she will not constrain defendant's poll of the jury, but she will scrutinize their methodology if they use the survey to move for a change of venue.

She asked a very good question of the prosecution: How do you define disparaging and intimidating? That's always been my question when you're talking about legal terms. Some people are intimidated more easily than others. Is there a definition which everyone can agree upon? I seriously doubt it. 

 And who decides "intention"?  What if the defendant denies the charge?

Chutkan did cut off Trump's attorney when he claimed the Biden administration is trying to silence Trump, saying Joe Biden is not a party before the court and Trump is a criminal defendant subject to the same rules as everyone else.  (Not technically true, of course, or he'd probably already be under a severe gag order or in jail.)

Then Chutkan asked Trump's attorney what would be the result if she approved the government's order?

But not for Trump's attorney...

Judge Chutkan asked the prosecution why Trump's remarks disparaging a jury pool can't be addressed through "careful jury selection."  I haven't found the answer to that yet.

Trump is not at this hearing, and I have no doubt he is furiously spewing all the taint he can before a possible order comes down.  He and his sons/surrogates.

And that could be said of any defendant who wouldn't be allowed to say those things.

Judge Chutkan spoke about Trump's attack on Judge Engoron's clerk in the New York fraud case, and in which Engoron issued a partial gag order, asking why she shouldn't follow suit.  Trump's attorney said nothing like that would happen in THIS case.

Chutkan brought up Trump's social media attacks on Pence, General Milley, and Brad Raffensperger.

And that's the nut of the matter.  The office of pre-crime doesn't exist in this country, yet.  And that's a good thing.  Except when it allows for incitement to violence, which January 6 should have proved is alive and well in Trump's rhetoric.

!!!!!  That's the whole frigging point.

At that point, Judge Chutkan called a "brief recess."

Her decision:

Well, we'll see.

How long before we find that out?

Bingo.

Also...

Roger Parloff's complete live-tweeting thread is here if you want to read it.

...but hey, do what you want...you will anyway.

UPDATE 06:01 pm:  And the payoff...

"At the request of Joe Biden."

UPDATE 10/17/2023:

Donald Trump's attorneys on Tuesday appealed the partial gag order imposed in the Washington, D.C. election interference case against the former president.

[...]

While the procedural timeline for Trump's appeal to the U.S. Court of Appeals for the District of Columbia is uncertain, appeals of pre-trial issues could potentially lead to delays in the case.

[...]

A trial is scheduled to begin on March 4, 2024, in Washington, D.C.

  The Messenger

UPDATE 10/18/2023:

He has already appealed her gag order. 

UPDATE 10/20/2023: