Judge in Jan. 6 case says she'll grant part of government's proposed gag order against Trump

Prosecutors have asked for restrictions on Trump to protect potential jurors.

ByKatherine Faulders, Alexander Mallin, and Laura Romero ABCNews logo
Monday, October 16, 2023
Judge to hear arguments on gag order in Trump in 2020 election case
The judge overseeing Donald Trump's Georgia election interference case was set to hear arguments on a proposed gag order Monday.

The federal judge in former President Donald Trump's federal election interference case in Washington, D.C., has granted part the government's request for a narrowly tailored gag order against the former president, after arguments wrapped up Monday in a hearing on the matter.

U.S. District Judge Tanya Chutkan ruled that Trump is prohibited from making statements or "reposting" statements "publicly targeting" special counsel Jack Smith and his staff, as well as Chutkan's staff and the staff of other D.C. district court personnel.

She is additionally barring him from making statements about potential witnesses in the case and the substance of their potential testimony.

The judge said this will not prohibit Trump from publicly attacking former Vice President Mike Pence, now his political rival in the 2024 presidential race, as part of their campaign against one another. However, Trump is now barred from making statements about Pence's actions related to the Jan. 6 certification of the 2020 vote and events leading up to the attack on the U.S. Capitol.

Timeline: Special counsel's probe into Trump's efforts to overturn 2020 election

The long-running investigation looks into a variety of schemes and efforts by Trump designed to help him cling to power even after he lost the election to Biden.

Judge Chutkan said she will not impose additional restrictions on statements Trump might make about Washington, D.C., or its jury pool, or statements made criticizing the government, including the Justice Department or the Biden administration.

However, Chutkan said, "His presidential candidacy does not give him carte blanche to vilify and implicitly encourage violence against public servants who are simply doing their job."

"Mr. Trump can certainly claim he's being unfairly prosecuted, but I cannot imagine any other criminal case in which the defendant is permitted to call the prosecutor 'deranged,' or a 'thug,'" she said. "And I will not permit it here, simply because the defendant is running a political campaign."

While she said Trump "may still vigorously seek public support" as a presidential candidate and criticize the Biden administration, his First Amendment rights as a criminal defendant do "not allow [Trump] to launch a pretrial smear campaign against participating government staff, their families and foreseeable witnesses."

"No other criminal defendant would be allowed to do so, and I'm not going to allow it in this case," she said.

Trump in August pleaded not guilty to charges of undertaking a "criminal scheme" to overturn the results of the 2020 election by enlisting a slate of so-called "fake electors," using the Justice Department to conduct "sham election crime investigations," trying to enlist the vice president to "alter the election results," and promoting false claims of a stolen election as the Jan. 6 riot raged -- all in an effort to subvert democracy and remain in power.

Special counsel Jack Smith's team had urged the judge to impose restrictions on Trump in order to protect potential jurors, citing the former president's conduct on social media regarding people involved in his various legal battles.

The judge pushed back during Monday's hearing after attorneys for Trump called a proposed gag order on the former president "censorship."

"We are in here today because of statements that he's made," Judge Chutkan said before calling for recess.

Earlier, after Judge Chutkan went through different categories of statements Trump has made -- including a social media post in which Trump that called D.C. "a filthy and crime ridden embarrassment to the nation" -- Trump attorney John Lauro pushed back, saying Trump's statements were simply criticizing the Biden administration, and were about "public policy."

"Those statements can be a double-edged sword," Chutkan replied.

Lauro, who kept referring to the proposed gag order as censorship, was then interrupted by Chutkan, who said, "Mr. Lauro, you keep saying censorship. There is no question that a court is entitled to draw restrictions."

"We're talking about restrictions to ensure there is a fair administration of justice," the judge added.

The judge specifically asked Lauro about a Truth Social post Trump made during his ongoing fraud trial in New York City, in which he posted a false statement about the judge's law clerk, prompting the judge in that case to issue an oral order restricting all parties from speaking publicly about his court staff.

Chutkan said she was less concerned about Trump's attacks targeting herself, but said the post "deeply disturbed" her and she asked Lauro repeatedly to say whether he believed such conduct was appropriate.

Lauro, who appeared uncomfortable, said that if he were advising Trump, he would not tell him to do something similar again.

When the judge asked whether she should implement an order similar to the one posed by the judge in New York that bars Trump from public posts about court staff, Lauro replied that such an order wouldn't be necessary because if Chutkan were to directly admonish Trump for his statements he would follow her directions.

"I will instruct my client along with what you've just suggested," Lauro said.

Judge Chutkan also read a social media post by Trump that suggested General Mark Milley could have been executed in the past for conduct in office.

"To write in all caps 'DEATH,' about someone who is a potential witness -- doesn't that go too far?" Chutkan asked Lauro.

Lauro defended the statements, saying Trump was clearly referencing the fact that that Milley's conduct fell within the legal definition of treason, and that, historically, the punishment for such a crime was death.

"If you suggest that someone is deserving of execution, then it's not a far stretch to imagine a situation when one of the millions of followers of this person decides to go ahead and do that," Chutkan said.

Chutkan also asked prosecutors whether the proposed gag order would prevent Trump from making public attacks on the Biden administration, such as calling President Biden "Crooked Joe Biden," to which prosecutor Molly Gaston Gaston answered that such statements would not violate the order.

On the other hand, said Gaston, Trump's attacks calling the Justice Department "The Department of Injustice" would present some concern, given the influence it could ultimately have on the jury pool.

When Judge Chutkan asked Gaston whether an unfounded statement by Trump on the prosecution being directed by President Biden would be barred by the order, Gaston said it would not because Biden is not a witness.

"I'm sitting here thinking George Orwell would have a field day" with what the government is proposing, Lauro said of the proposed order at one point.

"George Orwell would definitely have a field day," Chutkan responded back, sarcastically.

The judge then asked Lauro, a former career prosecutor himself, answer whether such statements would be appropriate from any defendant in a criminal case.

"What I want you to do is answer my question as to why a criminal defendant should be allowed to call a prosecutor a "thug," she said. "Tell me how the word 'thug' is justified here."

"It may not be the word that you like, but he's entitled under the First Amendment to make those statements," Lauro said.

Earlier , after Lauro began his remarks by accusing the government of mounting a political operation to silence Trump as he runs for president in 2024, the judge said, "Let me stop you right there, Mr. Lauro."

"Mr. Trump is a criminal defendant. He's facing four felony charges," she said. "He must comply with conditions of release. He does not have the right to say and do exactly as he pleases."

Lauro pushed back against the proposed order, saying Trump's statements and posts are about "news of the day" and about issues related to his campaign.

"I understand you have a message you want to get out," Chutkan said in a later exchange.

Lauro continued to press forward, arguing that President Joe Biden would not be barred under such an order to speak publicly about the case.

"[Biden] is not a party to this case," Chutkan said. "He's not subject to conditions of release."

She later added, "Politics stops at this courthouse door."

Chutkan also questioned the special counsel's office on what punishments should be in place should Trump violate any order, should she impose one. Gaston answered that penalties could include home detention, financial penalties, an admonishment from Judge Chutkan herself or even a reconsideration of his pretrial release.

Lauro responded that enforcement of the order would be "impossible."

He also argued Trump has not, to date, violated his conditions of release as previously imposed by the court.

"There's been no threats, no accusations against any witnesses," Lauro said.

Trump's federal election interference trial is currently scheduled to begin in March.