Judge Chutkan rules on protective order to limit Trump's speech in Special Counsel Smith's 2020 election case

 August 12, 2023

A hearing was held Friday on the broad protective order sought by Special Counsel Jack Smith against former President Donald Trump that would have essentially gagged and completely silenced him with regard to any and all materials turned over in the discovery process of the 2020 election/Jan. 6 criminal case.

U.S. District Judge Tanya Chutkan didn't agree to the full scope of what the special counsel's team had requested, but she did impose some limitations on what Trump would be allowed to share publicly in terms of evidence in the case, The New York Times reported.

In addition to the limitations on the former president's free speech rights, she also issued some rather direct warnings to Trump's team that the court would take any and all actions deemed necessary if Trump were to violate the protective order and publicly share information that could be construed as intimidating witnesses or prejudicing potential members of a jury.

Limitations imposed on what Trump can say and share

In seeking the broad protective order, the special counsel's team had pointed to social media posts and public statements from former President Trump that caused them some concerns that he might try to intimidate witnesses and other parties to the case or possibly taint the jury pool by publicly releasing information turned over by prosecutors to the defense in the discovery process.

"I do want to issue a general word of caution," Judge Chutkan said. "I intend to ensure the orderly administration of justice in this case as I would in any other case, and even arguably ambiguous statements by the parties or their counsel" that might be considered an effort to "intimidate witnesses or prejudice potential jurors" could trigger action from the court.

"I caution you and your client to take special care in your public statements in this case," she told Trump's attorneys. "I will take whatever measures are necessary to protect the integrity of these proceedings."

There is one particular and potentially large problem there, though, as noted by The Times -- former Vice President Mike Pence, who may be called to serve as a witness against Trump but who is also a current political opponent in the 2024 GOP primary race and is free to say anything he wants against his former boss, a situation Trump's attorney described as "uncharted waters" in that Trump must have "the right to respond" to anything Pence says without incurring a response from the court.

Trump has a "right to free speech" but that right "is not absolute"

While The Times largely portrayed Judge Chutkan's ruling on the protective order as a win for Special Counsel Smith, NPR reported that the judge's "mixed ruling" was actually a "partial win" for both sides in the case, as she rejected the overly broad protective order sought by prosecutors that would have completely silenced the former president about virtually anything and everything related to the case.

At the same time, however, she did impose some limitations on Trump's speech with regard to "sensitive" materials turned over in discovery, the definition of which she broadened somewhat to include things like witness testimony and audio recordings.

"Mr. Trump, like everyone else, has a First Amendment right to free speech," the judge said. "But that right is not absolute."

Judge issues warnings against "inflammatory statements" and "trial by media"

ABC News reported that while former President Trump was not present at the hearing, Judge Chutkan did appear to issue a direct warning against his tendency to make "inflammatory statements" that could cross the line and violate the protective order, which could prompt her to speed up the timeline for the trial to minimize the risk of a prejudiced jury pool.

"The more a party makes inflammatory statements about this case which could taint the jury pool or intimidate potential witnesses, the greater the urgency will be that we proceed to trial to ensure a jury pool from which we can select an impartial jury," she said.

The Washington Examiner reported that Judge Chutkan also issued a warning against "trial by media" that many would construe as being aimed squarely at Trump and his attorneys, as The Times' coverage portrayed, but could also be equally aimed at the steady trickle of selective leaks to the media from the special counsel's team.

"While I intend to ensure that Mr. Trump is afforded all the rights that any citizen would have, I also take seriously my obligation to prevent a carnival atmosphere of unchecked publicity and trial by media," Chutkan said, in reference to prior warnings against such by the Supreme Court, and added, "This case is no exception."

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