Judge Tanya Chutkan, who is presiding over the January 6 case against Donald Trump, is ruling on a gag request filed on behalf of Special Counsel Jack Smith against the former president.
Scott MacFarlane of CBS News provided the full picture from this morning’s proceedings. A transcript of the remarkable courtroom events follow below:
TODAY: Arguments in DC court of Judge Tanya Chutkan in Special Counsel Jack Smith’s request for a partial gag order in USA v. Donald Trump
I’ll be there… In support of motion for gag order, Special Counsel has argued “On Sept 22, on Truth Social, the defendant falsely claimed that the retiring Chairman of the Joint Chiefs of Staff, a witness cited in the indictment, had committed treason and suggested that he should be executed”
In advance of hearing, Jack Smith also argued “On Sept 26, on Truth Social, the defendant posted a link to an article singling out a specific prosecutor in the Special Counsel’s Office and claiming that the SCO is a team of Lunatics…”
Special Counsel has argued there’s a chilling effect on potential witnesses, “Even assuming that certain witnesses are not intimidated by the defendant’s statements, other witnesses see & may be affected by what the defendant does to those who are called to testify in this case”
On eve of hearing, Trump unleashed this social post: “Leaking, Crooked and Deranged Prosecutor, Jack Smith, who has a terrible record of failure, is asking a highly partisan Obama appointed Judge, Tanya Chutkan, who should recuse herself based on the horrible things she has said”
Jack Smith has already flagged JUST THIS TYPE of Trump rhetoric in arguing for the gag order.
Note this passage from Sept 15 court filing from Special Counsel =====>
No, Trump needn’t & won’t be in the courtroom for this hearing
It’ll be his defense lawyers making the argument. Their motions in opposition to gag order argue “keenly aware that it is losing that race for 2024 the prosecution seeks to unconstitutionally silence President Trump”
And Trump defense has previously argued in this case that “Trump has not intimidated anyone”
====>
And we are underway. Very punctual. 10am on the dot. Judge Chutkan details the proposed gag order …. And uses the phrase “gag order” … and she also mentions Jack Smith’s request for court to approve any Trump “jury surveys” .. seeking to avoid “push polls” that’d bias jurors
Judge says she’s gonna hear arguments on the “jury survey” matter first.
Judge: “I see little reason to impose much (for) jury survey requirements”
She invites special counsel to make argument
Judge says defense has already agreed to notify court about dates and sample size of any future surveys
Judge says survey would only likely only reach a few hundred people. And jury selection would weed out anybody who got the survey… “even if it were very slanted”
Judge says if Trump motions for a change of venue based on the survey… she might need to take a closer look at survey though
Judge shifts to gag order issue
Judge acknowledges the unique publicity this case will generate.
Judge: Government must prove any prohibited speech would pose a clear and present danger to the administration of justice
Judge says Trump’s pretrial release conditions already prohibit Trump from talking about facts or case with prospective witnesses in case
And they prohibit efforts to influence witness testimony
Judge says pretrial release conditions already prohibit intimidation and threats
Those rules apply to all parties. Including prosecutors and defense attorneys
Attempts to “unduly influence” witnesses already runs afoul of court rules, judge says
Judge says Special Counsel is seeking to add more restrictions
Judge will now begin questioning Special Counsel attorney Molly Gaston about what more the prosecutors are seeking ….
Prosecutor says they have no interest in limiting Trump running for office… but wants to restrict “derogatory” or “intimidating” or “inflammatory” statements prejudicing witnesses.. and “chilling” future witnesses
Publicly … including thru the media
Prosecutor says “this is about the participants and witnesses in this trial”… “it’s limited” she says
She cites Trump spokesman quote from Saturday in Washington Post that Trump seeks “to try this case in the court of public opinion”
Prosecutor: “We know this is hard.. to balance constitutional rights. But the defendant can’t be permitted to intentionally try this case in the court of public opinion”
Judge is peppering prosecutor with a series of questions about what would be “allowable” for Trump to say.
Prosecutor offers the possibility that Trump is asked question by a non-witness about the case while Trump campaigns.. and that he could deny the charges
Judge shifts to defense and opens with this statement about Trump, “He does not have the right to do or say anything that he pleases”.. because he’s a criminal defendant on pretrial release
John Lauro is arguing. “These prosecutors want to stop Mr Trump from speaking out about the issues of the day”
Judge interjects and asks defense if Trump “gets to make threats” just because he’s running for President”
And she interjects again when defense begins mentioning “prior restraint”..
Defense “he’s entitled to speak truth to oppression.. he’s even allowed to say things insulting to these prosecutors..as difficult as it may be for them to hear”
He mentions “tyranny & Biden Administration”
Judge cuts him off & says she doesn’t want to hear “campaign rhetoric”
Defense says Trump “has followed your Honor’s orders”
Judge interjects again and says “I’m gonna take issue with that”
Then leta Lauro continue. He’s arguing prosecution was deliberately timed to upend Trump campaign
!!!
Judge says this trial will not yield to the campaign.
Judge then says she will NOT revisit the trial date in case, March 4, 2024
Judge: “I’ve stressed this case will proceed as any other case. This defendant will be treated like any other defendant”
But she acknowledges she did excuse Trump from appearing in-person today
Defense argues any gag order would “be asymmetrical” and wouldn’t “apply to Joe Biden”
Judge Chutkan responds swiftly: “Joe Biden isn’t a party to this case… And he’s not under release conditions”
Defense attorney John Lauro is now arguing that a gag order would be “impossible” with Trump running for President
“What if he wants to criticize Mike Pence?”
Defense says proposed gag order is the best example “you can come up with” to violate 1st Amendment
Defense again argues Trump hasn’t made threats, made accusations about witnesses or said anything that amounts to intimidation. “What you’ve put in place is working”
Judge laughs
Judge has now laughed multiple times to defense suggestions that Trump is diligently following pretrial restrictions on his statements
Judge says she now wants to review some of Trump’s post-indictment statements
So…. standby
Judge says Trump’s post-indictment statements have referenced
1) DC or jury pool
2) Biden Admin
3) Jack Smith
4) Judges & their staffs
5) political witnesses
Judge begins w/ Trump criticisms of DC: “I’m calling for a federal takeover of this filthy, crime-ridden embarrassment to our nation”, “tourists have fled”, “it’s necessary, greatness..all the world to see”
Judge says there’s no question the statement disparages DC & jury pool
Judge Chutkan is asking prosecutors why jury selection can’t weed out any biases caused by Trump statements
(Noting from my experience covering many hearings before this judge… she’s frequently championed DC & its rich history during hearings and has objected to term “Swamp”)
Defense attorney John Lauro begins to defend Trump’s statement about DC by pivoting to criticism of Biden Admin. Judge interjects and says Biden isn’t mentioned in Trump’s DC statement.
There’s laughter in the courtroom as Lauro defends Trump statement.
John Lauro says Trump’s statement might bias jurors *against* Trump… further reducing need for gag order
Judge: “Well those statements *can* be a double-edged sword in light of a motion to change venue”
Judge pushes back on defense claims of “censorship”
She says Trump doesn’t have unfettered 1st amendment rights when he’s a criminal defendant
Defense: Gag order would prohibit the defendant from saying Washington DC is “infested by rats…. even though we know that it’s true”
We are still focused on the FIRST of the five categories of post-indictment Trump statements the court wants to discuss (Statements trashing DC)
Now we’ve shifted to criticism of Biden Admin
Judge mentions terms “Crooked Joe Biden” and “Dept. of Injustice”
Judge asks prosecutors if limiting “name calling” would impact administration of justice
Prosecutor says the concern with Trump trashing the judge and court could bias jurors who show up for trial and don’t trust the court or the administration of justice
Prosecutor: “He can criticize President Biden to his heart’s content. President Biden has nothing to do with this case”
Judge Chutkan continues to press prosecutor about why jury selection couldn’t weed out anybody biased or contaminated by Trump pretrial statements. She calls the prosecutor’s proposed gag order “broad”
But prosecutor has responded that she’s open to working w/ court to tailor it
Defense starts making argument about if Trump should be more limited in his speech “than Hunter Biden”
“George Orwell would have a field day” defense says
Judge says Hunter BIden is not a party of this case.. then jokes “Yeah..George Orwell *would* have a field day”
Now shifting to next category of Trump statements… about Jack Smith/Special Counsel’s office
Judge Chutkan begins with concerns about term “thug”… asks defense pointed questions about that “derogatory label”
“highly charged language”, judge says
Defense says “it’s fair for Mr Trump to say the prosecutor is deranged and insane”
“Most importantly, even a criminal defendant.. has a first amendment right to criticize the prosecutor bringing the case”
Defense says it’s outrageous that Jack Smith linked Trump to violence
Judge leans in. “In what kind of case do you think it’s appropriate for a defendant to call a prosecutor a thug… and remain on the streets?”
She asks same question twice.
Defense says this “prosecution is unprecedented” .. “what’s a candidate to do?”.. “stay silent?”
As Lauro defends Trump’s use of term “thug”…. Judge interjects again. She tells attorney John Lauro, “Obviously you have an audience other than me in mind”
Judge Chutkan: “Just because this defendant happens to be running a political campaign doesn’t give him the right to use any language he wants. Tell me how the term ‘thug’ is justified here.. it’s raises a real possibility of violence”
Defense refers to “oppression” & “tyranny”
Defense: “In President Trump’s mind.. he’s facing every possible right being taken away from him”
Judge responds by mentioning Trump’s Truth Social post from last night… which said Trump is campaigning in Iowa today. “Mr. Lauro, let’s tone this down a bit”
Judge: What about statements about the prosecutor’s families? She says Trump’s statements have targeted Jack Smith & his wife
Defense: Trump is arguing “political bias” by Mr Smith.. & 1st Amendment rights allow Trump to argue it’s biased
Judge: “By mentioning his spouse?”
So far… Judge Chutkan has articulated some particularly strong concerns about Trump’s use of the term “Thug”, Trump’s words about Jack Smith’s spouse and the District of Columbia
Prosecutor about Trump posts: “He knows the effect of these statements… they’re amplified.. they motivate people to threaten others”
“It not only prejudices jury pool.. but it threatens and chills witnesses too”
Judge shifts to fourth category of statements (about court)
She says Trump has referred to me as “Trump hating” “Obama .. judge”
Judge: Mr Trump’s rights do not extend to speech that knowingly elicits threats
Judge criticizes Trump for speech targeting New York judge staffer
Judge to defense: “Do you think a defendant posting a photo of a judge’s law clerk on social media is acceptable? Or Mr. Trump to post a photo of my staff?”
Defense: “I’d advise him strongly not to do that”
Judge: “That’s not an answer to my question”
Defense attorney Lauro says there are issues “of judicial bias” that defense “has raised respectfully” with Judge Chutkan
Defense says Trump is already following all of Judge Chutkan’s admonitions…. and that there’s no need for a formal court gag order
John Lauro says Trump follows the guidance of the court
Defense: “Your honor … some of the things written about you have been very complimentary”
Judge: “Don’t believe everything you read”… and she laughs
Prosecutor leans back in.
“This court has been the subject of a criminal threat”
The danger is real, she argues
More on the case of threat against Judge Chutkan here:
Texas woman charged with threatening federal judge overseeing Trump Jan. 6 case
Prosecutors say the woman sent a threatening and racist voicemail to Judge Tanya Chutkan, and also made threats against Democratic Rep. Sheila Jackson Lee.
https://www.cbsnews.com/news/texas-woman-charged-racist-threats-federal-judge-trump-jan-6-case-tanya-chutkan-sheila-jackson-lee/
We’re shifting to final of 5 categories of Trump post-indictment statements. About possible witnesses in case
Judge quotes Trump statements slamming Mike Pence.. in which Trump claims Pence “went to the darkside” & a video in which Trump claimed AG Bill Barr “didn’t do his job”
There it is: Judge Chutkan reads the social media post in which Trump references Mark Milley and the punishment “of death”
Judge says she acknowledges “It would be impossible for Mr. Trump not to criticize Mike Pence” since Pence is campaigning. But she says the same is not true for the other possible witnesses targeted by Trump
Defense says if Special Counsel wants to argue Milley, Barr and others are being threatened… they should have gotten affidavits from Milley, Barr and others about it.
Then defense says some of the witnesses have “monetized” their criticisms of Trump
(more)
Defense argues those witnesses “Give as good as they get” in counterpunching Trump
Judge Chutkan interjects .. and asks defense:
“Really?? Are you saying (those witnesses) said Mr. Trump should be executed?”
Defense is downplaying the “punishment by death” statements about Mark Milley by Trump
Judge keeps raising the issue, though. She’s emphasizing that statement in particular
Judge: “To write in ALL-CAPS death about a possible witness in this case… doesn’t that go too far?”
Here comes prosecutor…
“We both know the tweet or post about Gen. Milley was a threat. A threat to him and all witnesses in this case.. that if you come after the defendant.. he will come after you”
Judge: “Mr Trump is not campaigning against Mr. Barr… or Mr Raffensperger or Gen Milley… so why should he make remarks about them at all” as part of campaign?
“His statements have the very real potential of misstating the facts of this case & the government can’t respond”
Judge: “He doesn’t get to use *all* of the words. He’s constrained by not being able to use words that can be construed as threats”
Defense: “None of these are threats”
Judge: “I disagree”
Defense: “These are public officials. We’re entitled to criticize people who exercise power as public officials”
Defense says DC jury pool “is completely biased against President Trump”
Judge “So repeatedly calling the District filthy and crime ridden is going to aid in that?”
Defense says Trump is going to clean up DC in 2024. “He’s going to take the rats off the street”
And there it is…. defense says “let’s have the trial after the election”
He’s arguing that’ll solve this issue
Judge Chutkan has already taken that issue off the table. She says she’s not delaying the trial date. She said it emphatically at the beginning of hearing
Defense: “We have to tolerate a bit of colorful ..speech” in political debates
Judge: “So if there’s violence or threats”… that’s what we have to accept?
Defense: No… if there’s violence or threats.. there’s a way to deal with that
Prosecutor: What the defense is arguing is that Trump should be above the law
“The defendant isn’t campaigning.. he’s using his campaign to try this case outside of the courtroom and pollute the jury pool”
Judge is now offering up some “hypothetical” Trump statements to see if defense would have any concerns with said statements
“Bill Barr should be executed for his many treasonous acts”
Defense: “I would advise anyone not to make statements like that”
Judge offers another hypothetical statement to ask if defense think it should be “permissible”:
“I hope Bill Barr will stay loyal for me.. or he can forget about a job in my Administration”
Defense: “it’s clearly a political statement”
Judge offers another hypothetical: “Bill Barr is a smart guy.. but he better learn to keep his mouth shut”
Judge asks, Is it permissible?
Defense: Depends on the context
Defense: Bill Barr has attacked President Trump more vociferously than Joe Biden has
Noting:
Judge continues to refer to him as “Mr. Trump”
Defense continues to refer to him as “President Trump”
Prosecutor continues to refer to him as…… “the defendant”
Defense is arguing that Pence, Barr, Milley and Raffensperger are used to the “rough and tumble” of politics
Defense says Pence, Barr and Raffensperger have “monetized” their criticisms of Trump and he says Gen. Milley will probably write a book too
Prosecutor is saying the hypothetical Trump statements about witnesses re: “hope you stay loyal” and “he needs to keep his mouth shut” and “should be executed” should all be impermissible
Judge Chutkan and prosecutor continue to revert to a more fundamental concern
Trump can and will make “extrajudicial statements” about the case in the public sphere
The federal prosecutors can not. And will not
The asymmetry is part of this gag order issue
Prosecutor: “The witnesses the defendant has attacked to date….” are all named in indictment.
“He knows that they are witnesses”
Defense says there’s a “asymmetry” because Bill Barr can blast Trump. But Trump would be prohibited from blasting Trump
Judge interjects: But Bill Barr isn’t a criminal defendant
Judge: “We’re in here because he keeps calling the prosecutors thugs…”
“I’m not sure without some type of restriction, we won’t be in here all the time”
Prosecutor is closing now….. “Our trial will be completed well in advance of November 2024″… the statements as issue here are a “fraction of the defendant’s speech”
She argues Trump can continue campaigning, but must “stop attacking witnesses”
Judge Tanya Chutkan is taking a recess. Then she’ll return.
Significantly raising the prospect she’ll rule TODAY
Standby ….
Judge Chutkan’s exchange with former President Donald Trump’s legal team is remarkable in that there is a motion being made to silence a political candidate running against the President of the United States during a political campaign.
Chutkan has a history of making partisan statements suggesting bias against Donald Trump, but has rejected requests that she recuse herself from the case.
In October, she said that the J6 protesters “were there in fealty, in loyalty, to one man — not to the Constitution,” then added, “It’s a blind loyalty to one person who, by the way, remains free to this day.”
The defense’s motion for Chutkan to recuse herself after she scheduled a trial date for Trump on March 4. Trump had previously pleaded not guilty to a four-count indictment accusing him of illegally conspiring to overturn Joe Biden’s 2020 election victory.
It will be a pivotal moment in U.S. political history based on the way that Judge Chutkan rules on the narrowly tailored ‘gag order.’
CBS correspondent Catherine Herridge recently interviewed a legal scholar named Joseph Tully who expressing that what the U.S. government was requesting was ‘troubling.’
“Well, I was very troubled by the language in the government’s briefs,” he responded. “I think that they’re attacking him. They’re basically saying he can’t have a point of view, and it was very troubling to read all of the statements from the government.”
“Normally speaking, judges leave out a defendant in a criminal case, so they can order an attorney to abide by a gag order,” he continued. “They can order witnesses, police officers, court employees, but they normally stay away from somebody who’s charged in a crime.”
“So what I’m hearing you say is that what makes this motion really stand out to you is that the gag order is applied to a defendant, which is something you don’t normally see. Is that correct?” Herridge asked.
“Correct,” Tully said. “They’re applying it to a defendant, which is very rare, and if you read the language, they’re saying that he has no right to comment about the case, and they’re saying basically that our case against him is true and that he should not have an opinion that it is contrary to our opinion.”
“What are the consequences if this narrow gag order is violated by the former president?” Herridge asked.
“Then he would be held in contempt of court and he could be confined,” Tully said. “In other words, put in jail while awaiting trial. He’s out on or bail. He has certain conditions, and if he violates those conditions, he could be essentially locked up while he’s waiting trial.”
This should be ‘troubling’ to any American who values free speech and due process.
