What a Partial Gag Order on Trump Means for his Election Subversion Case Transcript

A federal judge in Washington imposed a narrow gag order on former President Donald Trump in the election subversion case Against him. It bars Mr. Trump from targeting special counsel Jack Smith and his team, as well as court staff and potential witnesses. It does not prevent him from criticizing the Justice Department. NPR Justice correspondent Carrie Johnson was in the courtroom today and is with us now. So, Carrie, this partial gag order, how does it work and what does it cover?

It covers some of what the Justice Department asked for, but not all of it. As you mentioned, former President Trump is on the campaign trail. He’s free to criticize current President Joe Biden. He’s free to criticize the Justice Department as it’s led by Attorney General Merrick Garland, and he’s free to say things about Washington DC where he’s scheduled to go on trial here in 2024. But former President Trump will not be allowed to attack the special counsel Jack Smith or any members of Jack Smith’s team. He will not be allowed to attack any courthouse staffers or workers, and he will not be allowed to attack potential witnesses. In the case, people like former Attorney General Bill Barr and former Joint Chiefs Chairman, Mark Milley, among others, Trump will be allowed to personally attack the judge, in his case, Tanya Chutkan, and he’s continued to do so this afternoon, even after the gag.

Did the judge say what would happen if Donald Trump or the other parties in this case violate the gag order?

The judge set out a pretty broad continuum of what might happen from a stern warning or financial penalties to possible home detention or even incarceration before trial. But she didn’t say how she would escalate that or what she would do if Trump or anyone else, any of the lawyers in the case violated some of these rules. She did say, though she would be willing to impose some sanctions. We just don’t know what yet.

Carrie, remind us why this was even necessary? Why the special counsel requested this gag order in the first place?

Yeah, let me take you back to the day after former President Trump was arraigned on four felony charges here in DC. One day later, he posted on social media, “If you go after me, I’m coming after you.” And since that time, he’s attacked the Special Counsel Jack Smith, calling him deranged, calling his lawyers a bunch of thugs. He’s called the judge, a radical Obama hack. He’s basically said former Joint Chiefs Chairman, Mark Milley, potentially should be executed or face execution. He’s beat up his former attorney General Bill Barr, and of course had a lot of criticism for his former Vice President, Mike Pence as well. All of those people are likely to be witnesses against him at this trial, and the judge and the Justice Department were concerned about witness intimidation and damage to the administration of justice and also taints to the jury pool here in DC.

As you mentioned, Donald Trump has already blasted this gag order. Here’s a bit of what he had to say at an event in Iowa today.

This is weaponry all being done because Joe Biden is losing the election and losing very, very badly to all of us in the polls. He’s losing badly. But what they don’t understand is that I am willing to go to jail if that’s what it takes for our country to win and become a democracy again.

So Donald Trump’s attorneys have said that they plan to appeal. They say that this gag order is fundamentally antithetical to his First Amendment rights. What does the law actually say, Carrie?

There’s not a lot of law on this at the Supreme Court. We haven’t had cases where defendants have been gagged pending trial, and in those cases have gone all the way up to the highest court in the land. But what’s clear is that Judge Tanya Chutkan, who will preside over this trial next year, has said is that just because you’re running for president doesn’t mean you have unfettered First Amendment rights. Donald Trump is also a criminal defendant and he’s not supposed to influence witnesses who might testify against him.

Carrie Johnson of NPR always a pleasure to speak with you. Thanks.

Thanks, Jeff.