In a court filing last week, Special Counsel Jack Smith, the prosecutor in the federal criminal case against Donald Trump for his efforts to overturn the results of the 2020 presidential election, charged him with making “daily extrajudicial statements that threatens to prejudice the jury pool. . . .” Associated with that filing was a government motion–not formally docketed or made public in the first instance, but made public today (9/15), that asked Tanya Chutkan, the presiding judge, to impose a limited gag order against Trump for such statements, a sanction designed to penalize Trump for his transgressions and to ensure, if and to the extent practicable, their cessation. The limited gag order would prohibit Trump from making statements, on social media or otherwise, that could be reasonably understood as threatening witnesses or endangering the safety of prosecutors or court personnel, including Judge Chutkan herself.
Social media postings by Trump on the same day as the filing are exemplary of his offending statements. On the morning of the filing, he openly mocked the idea that Judge Chutkan could adjudge the case fairly. Then, in the evening, he attacked Mr. Smith as a “deranged” prosecutor with “unchecked and insane aggression.” These statements followed several others that either threatened to poison the jury pool or threatened potential witnesses, or both. On the day after his arraignment, for example, Trump declared that “[i]f you go after me, I’m coming after you.”
Such statements have presented Judge Chutkan with a difficult problem.
The quandary for her is that the usual sanctions that federal district judges have at their disposal for continuing and flagrant violations of the prohibitions against jury and witness tampering --a gag order, fines, or jailing–are all problematic here.
A gag order is a court order forbidding criminal defendants from talking about, publishing, or disseminating information or expressing views about the case in which the defendant has been charged. (Judge Chutkan has sternly warned Trump against engaging in attempts to intimidate witnesses or prejudice potential jurors, suggesting that they would be sanctioned in some unspecified way, but has not issued a formal gag order). Gag orders can be broad or narrow; the one sought here by the Special Prosecutor is relatively narrow.. But whatever the breadth of any gag order here, it would be unlikely to silence Trump from continuing to make offending statements. This is because the imposition of any gag order will permit him to continue to pursue, indeed to magnify, a central feature of his litigation strategy. This feature is for Trump to play the victim in a scheme allegedly orchestrated by a corrupt President Biden to improve his reelection chances. The magnification would follow from Trump’s predictable proclamation that a gag order substantially and wrongly compromises his first amendment right freely to speak and constitutes “election interference.” Fines would also not be a meaningful deterrent. Trump would treat them as a cost of his campaign and as a hook for fund raising. As for jailing, that would effectively prohibit Trump from communicating with anyone but his lawyers, but his many surrogates would quickly take up the victimization plea, and convincingly so. Convincingly so, because the jailing of a criminal defendant, without the defendant having been convicted of any crime, makes the defendant look a lot like a victim to the jury pool (and to the electorate), however warranted the jailing might be under the rules safeguarding the constitutionally established system of trial by impartial jury.
Happily there is a better, not a perfect but a better, sanction available for Trump’s violations of the prohibitions against jury and witness tampering than a gag order, fines, or jailing.
The proposed sanction capitalizes on Trump’s lawyers’ professed conviction that it is impossible for them adequately to prepare for trial by the March 4 date that Judge Chutkan has set.
Judge Chutkan should exercise the virtually unfettered discretion she enjoys to set a trial date by entering an order that provides that every extrajudicial statement that Trump makes after the entry of the order that either threatens to poison the jury pool or that threatens witnesses shall be sanctioned by resetting the trial date to an earlier one by one week, so that if Trump makes an offending statement after entry of the order, the trial date start would be moved from Monday, March 4, to Monday, February 26. It would, of course, be well within Judge Chutkan’s discretion to impose a more modest (two days) or more severe(two weeks) trial date start sanction for every offending statement.
To be sure, Judge Chutkan, even for successive offending statements, coould not move the trial to a date so soon from now that it would present Trump with a good argument on appeal that he was denied his right to a fair trial because his lawyers had been given insufficient time to prepare. But pushing the trial start date to January 2, 2024, the start date initially requested by the Special Counsel, would not hand Trump even a colorable argument to that effect.
Would an order of the type presened persuade Trump, left to his own devices, to cease his offending statements? Maybe not, but the same order, especially if it held out some hope that Judge Chutkan might be receptive to moving the trial date from March 4 to a somewhat later one if the offending statements ceased fully and promptly, would almost certainly prompt Trump’s lawyers to lean heavily on him to effect a halt to them. Whether or not Trump would listen to their fervent pleas even if reluctantly is uncertain, but the proposed sanction almost certainly has a better chance than its alternatives of putting a halt to his offending statements, or at least limiting their frequency. Moreover, Trump could not readily manipulate the proposed sanction so that it became an example of his victimization. It is one thing for a criminal defendant to claim he is a victim if he is subject to a gag order or jailed, quite another to make the same claim if his trial date has simply been moved to an earlier one by one or more weeks.