Donald Trump has been issued a limited gag order by the federal judge overseeing the criminal case over his efforts to overturn the results of the 2020 election, prohibiting him from making public statements attacking prosecutors, court staff and potential trial witnesses.
The former president was not prohibited from generally disparaging the Biden administration, the US justice department and the trial venue of Washington DC, and will continue to be allowed to allege that the case was politically motivated.
Those were the contours of a tailored protective order handed down on Monday by Tanya Chutkan, the US district judge who said she would enter a written opinion at a later date but warned Trump’s lawyers that any violation of the order could lead to immediate punitive sanctions.
The ruling was the culmination of a two-hour hearing in federal district court after prosecutors in the office of the special counsel Jack Smith had asked the judge to impose restrictions on Trump’s attacks that they felt could chill witness testimony – and Chutkan agreed.
“There is a real risk that witnesses may be intimidated,” Chutkan said as she explained her decision from the bench, adding that just because Trump was a 2024 presidential candidate and the GOP nomination frontrunner did not give him free rein to “launch a pre-trial smear campaign”.
The Trump legal team told reporters shortly after the hearing that they would appeal the protective order, a move that could delay the trial past its scheduled March start, and a Trump spokesperson issued a statement that carefully assailed the judge’s decision without quite stepping over the line.
“Today’s decision is an absolute abomination and another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden, who was granted the right to muzzle his political opponent,” the statement read. A person familiar with the matter said the Trump lawyers had signed off on the language.
At issue were dozens of public remarks by Trump and Truth Social posts from him disparaging the case since he was indicted in August on charges he conspired to reverse his 2020 election defeat and obstructed the transfer of power, including the January 6 congressional certification.
The judge separated into five categories Trump’s inflammatory comments about: the trial venire of Washington DC, the Biden administration and the justice department, Smith and his staff, Chutkan and her staff, as well as people who might be called to testify at trial.
Chutkan appeared to have decided that she would not restrict Trump from disparaging the trial venue because biased jurors could be filtered out before trial. She also indicated she would not restrict Trump from attacking the government because it would be within the scope of political speech.
But the judge took issue with Trump’s attacks on the special counsel. Chutkan repeatedly asked Trump’s lead lawyer John Lauro why the former president needed to call Smith a “thug” in order to suggest that the criminal case against him was politically motivated.
In a contentious moment, Lauro asked rhetorically what Trump was supposed to do “in the face of oppression”. Chutkan sharply raised her finger and instructed him: “Let’s tone this down.”
An aggrieved Lauro retorted: “If your honor wants to censor my speech.”
The judge also took issue with Trump’s track record of attacking court staff. Chutkan suggested she was less concerned by Trump’s personal attacks on her as an “Obama-appointed hack” but was disturbed by his recent post in his New York civil fraud trial where he disparaged the judge’s clerk.
Lauro tried to insist that the New York case was the New York case, and he repeated his assertion that nothing like that happened in this case. Chutkan disputed that claim with an exasperated laugh earlier in the hearing.
The judge appeared most unconvinced by the Trump legal team’s contention that the former’s president’s statements against certain potential trial witnesses were not intimidating or might chill other witnesses from testifying against him at trial.
Prosecutors had flagged, among others, attacks on Gen Mark Milley, the former chair of the joint chiefs of staff. “In times gone by,” one post said, “the punishment would have been DEATH! A war between China and the United States could have been the result of this treasonous act. To be continued!”
The Trump legal team had argued that prosecutors had no evidence that people like Milley or Trump’s former attorney general William Barr had felt intimidated by the former president’s criticisms of them, adding that they were high-profile public figures who were used to political rhetoric.
But Chutkan remained skeptical. She told the Trump legal team that the ex-president, as a criminal defendant, did not have unfettered first amendment rights and did not get to respond to every criticism levelled by Milley or Barr or others.
The point was buttressed by the assistant special counsel Molly Gaston who argued to the judge about Trump: “He isn’t campaigning – he’s using his campaign to intimidate witnesses and pollute the jury pool.”
Before Chutkan ultimately made her decision, she ran through a list of four hypothetical Trump statements that she had drawn up. She asked Lauro to say whether he thought the statements violated the conditions of Trump’s release conditions about intimidation or should be permissible generally.
The hypotheticals included one about if “Barr was a slimy liar”. Lauro responded half-jokingly he did not want to say that the truth was a defense but insisted that it was not intimidating.
Chutkan appeared to disagree and suggested it impermissibly cast doubt on Barr’s testimony.
