Federal prosecutors have asked Chutkan, who is overseeing Trump’s federal election interference case, to impose a narrow gag order that would bar him from making “inflammatory” and “intimidating” comments about witnesses, lawyers and other involved in the case.
The Republican former president is charged with four felony counts related to his efforts to undo his 2020 election loss to President Joe Biden, including conspiracy to defraud the U.S. government and conspiracy to obstruct an official proceeding. It is one of four criminal cases Trump is facing as he seeks to regain the White House. He has pleaded not guilty to all charges.
The decision about whether to impose a gag order is a big test for Chutkan, an appointee of former President Barack Obama, who has been at the receiving end of Trump’s attacks herself after being randomly assigned to the case.
As the Associated Press noted, she will have to balance the need to protect the integrity of the legal proceedings against the First Amendment rights of a presidential candidate to defend himself in public. If a gag order is imposed, Chutkan will have to navigate how it might be enforced and how to ensure it does not fuel Trump’s claims of political persecution.
“She has to think about the serious risk that it’s not just his words that could trigger violence, but that she could play into the conspiracy theories that Trump’s followers tend to believe in, and that her act of issuing a gag order might trigger a very disturbing response,” Catherine Ross, a George Washington University law school professor, told the AP.
“If we allow that to stop a judge from doing what is called for, that’s a big problem for rule of law. But on the other hand, if I were the judge, I would certainly be thinking about it,” she said.
Erwin Chemerinsky, a legal scholar and the dean of the University of California Berkeley School of Law, has argued that a gag order would “infringe freedom of speech and likely do little good.”
Trump “does have free speech rights, however much I loathe what he has to say,” he wrote in a recent op-ed.
“Anyone, including him, can criticize a prosecution, a prosecutor and a judge. Of course, no one has the First Amendment right to intimidate witnesses, but there is no indication that his speech has risen to that level.”
While he noted there is concern that trump’s “incessant criticism of the proceedings will undermine their legitimacy and even lead to violence,” he wrote that “the government, including a court, can never try to bolster its legitimacy by silencing its critics.”
Chemerinksy added that if Chatkan were to impose a gag order, she must be prepared to enforce it if he violates its terms. “In other words, she must be prepared to put him in jail for contempt if he speaks out despite the gag order,” he wrote.
Chutkan has imposed a protective order in the case, and warned that violating that order or inflammatory comments could result in her moving up the trial, which is scheduled to begin in March, to reduce the risk of a tainted jury pool.
Federal prosecutors have also asked Chutkan to force Trump to tell them whether he intends to defend himself by arguing that he was following the advice of his lawyers.
Trump and his lawyers have “repeatedly and publicly announced that he intends to asset the advice of counsel as a central component of his defense,” special counsel Jack Smith‘s team wrote in the motion filed on Tuesday.
They requested a formal order requiring Trump to disclose his plans by December 18 “to prevent disruption of the pretrial schedule and delay of the trial.”
That notification could give prosecutors an edge in the case.
The filing noted that if Trump relies on an advice-of-counsel defense, he “waives attorney-client privilege for all communications concerning that defense, and the government is entitled to additional discovery and may conduct further investigation, both of which may require further litigation and briefing.” According to the filing, 25 witnesses cited attorney-client privilege when they withheld information from the investigation.
An attorney for Trump declined to comment.