Trump’s speech will be limited to protect trial, witnesses, judge says

The U.S. judge overseeing Donald Trump’s prosecution for allegedly criminally conspiring to overturn Joe Biden’s election victory said that while every American has a First Amendment right to free speech, it is “not absolute” and that even the former president’s campaign statements must yield to protecting the integrity of the judicial process.

In her first hearing over Trump’s federal case in D.C., U.S. District Judge Tanya S. Chutkan said that “the fact that he is running a political campaign” will have no bearing on her decisions and “must yield to the orderly administration of justice.”

“If that means he can’t say exactly what he wants to say about witnesses in this case, then that’s how it’s going to be,” Chutkan said Friday, repeatedly warning the former president and his defense about limits on what he can potentially reveal about government evidence in the case. “To the extent your client wants to make statements on the internet, they have to always yield to witness security and witness safety.”

“I caution you and your client to take special care in your public statements about this case,” the judge said after the 90-minute hearing, “I will take whatever measures are necessary to safeguard the integrity of these proceedings.”

Chutkan’s warnings laid down an early marker in the case, even as she settled a fight between the sides over a protective order needed to speed the prosecution’s handover of materials and the court’s setting of a trial date, which special counsel Jack Smith’s team has proposed for Jan. 2.

In the hearing, Chutkan rejected the government’s request for a blanket protective order limiting sharing of all evidence released in the case. However, she mostly sided with prosecutors in granting them leeway to define “sensitive” materials subject to greater protections, adding that Trump’s defense had agreed to similar conditions in his pending special counsel prosecution in Florida on charges of mishandling classified documents and obstruction.

The judge did warn that despite the limits of the protective order, all of Trump’s behavior and statements are covered by his conditions of release. So regardless of whether his statements are made from disclosures derived from discovery or not, if they have the effect of interfering with the administration of justice or intimidating or harassing witnesses, the judge will be “scrutinizing them very carefully.”

“This is a criminal case,” Chutkan said. “The need for this criminal case to proceed in normal order and to protect the integrity of the process means there are going to be limits on the defendant’s speech.”

Chutkan also warned that Trump’s defense is supposed to happen in the courtroom, not the internet, and the safety of witnesses is critical.

But Trump’s lawyers argued that the limits can be overly burdensome.

“The risk is that someone can say something in the course of a heated debate or in a heated campaign, and they [prosecutors] are going to throw a flag: ‘Wait a minute, somewhere in the bowels of discovery there’s something that’s related to something you just said,’” defense attorney John Lauro said.

The hearing yielded insights into how Chutkan will navigate the politically freighted case through the 2024 presidential election year. In the 10 days since Trump’s Aug. 1 indictment, the sides have dueled over defense demands that the judge uphold the Republican front-runner’s First Amendment and due process rights. Both sides have also sparred over the prosecution’s insistence that the court preserve the integrity of the government investigation, the public’s interest in a speedy trial and a jury pool less tainted by pretrial publicity.

Chutkan has indicated that she wants to set a trial date at her next hearing, which is scheduled for Aug. 28, and prosecutors asked her to issue the protective order first and let Trump ask to modify it later.

Trump pleaded not guilty last week to charges of conspiring to fraudulently subvert the results of the 2020 election, conspiring and attempting to obstruct Congress’s confirmation of the vote on Jan. 6, 2021, and conspiring against Americans’ civil right to have their votes counted. Since then, he has lobbed varying attacks, calling Smith “deranged” and former vice president Mike Pence — a key witness and 2024 GOP rival — “delusional.” Trump has also gone after judges, accusing them of bias.

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Chutkan is “the Judge of [Smith’s] ‘dreams’ (WHO MUST BE RECUSED!),” Trump wrote in a social media post Monday, although Lauro has said no final decision on a recusal motion has been made. “I think as lawyers we have to be very careful of those issues and handle them with the utmost delicacy,” Lauro said on a podcast with Florida defense attorney David Markus.

Trump on the campaign trail has scoffed at the notion that he would not talk about his criminal cases. “I’ll come here and I’ll say, ‘Hi, everybody, listen, I’m not allowed to speak. Please vote for me, New Hampshire, if you would. Bye,’” Trump said sarcastically at a stop there Tuesday.

“I will talk about it. I will. They’re not taking away my First Amendment right,” he said.

The dispute at issue Friday is the narrower subject of a protective order. Such agreements are routinely approved by judges to protect witnesses and government investigative methods by limiting evidence sharing by the defense to people authorized by a court. They are different from “gag orders,” which would limit what Trump and his legal team could say publicly.

Prosecutors have proposed adopting similar rules to a recent federal criminal case in Washington, prohibiting disclosure of government-provided materials to anyone outside his legal team, potential witnesses, their lawyers or others approved by the court.

In court filings, Smith’s team argued to Chutkan that disclosures by Trump of grand jury testimony or exhibits could have a “harmful chilling effect on witnesses,” citing his history of posting on social media about “witnesses, judges, attorneys and others” associated with cases against him, including one last week that said: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”

“The government is prepared, as soon as a protective order is entered in this case, to produce a substantial volume of discovery, including discovery that we are not obligated at this time to turn over,” Assistant U.S. Attorney Thomas Windom said at Trump’s arraignment. The point is to help Trump mount a defense in court, “not to wage a media campaign” or to allow his attorneys to breach court rules by making prejudicial out-of-court statements, Windom added in a filing.

Trump attorneys Lauro and Todd Blanche said they need to receive the evidence against him before they can estimate when a trial should happen or how long it might take. They objected that limits sought by the special counsel’s office are overbroad and could infringe on the First Amendment rights of Trump when the need to protect those rights is at its zenith — heading into the 2024 race as Biden’s main political opponent.

“To the extent the government seeks to restrain President Trump’s ability to speak about documents it produces, it must demonstrate: (1) a compelling reason for the restraint; and (2) that no narrower alternative is available,” Trump’s lawyers wrote in court filings.

Trump’s defense did not contest secrecy for grand jury information, sealed orders and search warrant returns. But his lawyers argued that the prosecution should clearly demarcate such sensitive information rather than insist on a blanket application to all material, such as interview reports that did not threaten witness security.

They also sought to widen disclosure to include “volunteer attorneys” or others not directly employed by his lawyers, and asked Chutkan for the freedom to cite sensitive information in public court filings or hearings without prior approval as long as it was redacted.

Chutkan, an Obama appointee who was confirmed to the bench in 2014, was randomly assigned the case. A former D.C. public defender and white-collar antitrust litigator, Chutkan was one of the first federal judges in D.C. to reject the former president’s efforts to use executive privilege to shield information from Jan. 6 investigators, in that instance White House communications that day sought by a House select committee investigating the Capitol riot.

“Presidents are not kings, and Plaintiff is not President,” Chutkan wrote in November 2021 — expanding on a memorable line from a 2019 opinion by former district court colleague Ketanji Brown Jackson, since elevated by Biden to the Supreme Court. Chutkan noted that Biden had waived executive privilege, overcoming his predecessor’s attempt to invoke the confidentiality of presidential communications, a ruling left intact by higher courts.

Chutkan has taken a firm stance toward Trump’s attorneys regarding deadlines at the outset of his case — declining to a grant extensions to respond to the government’s late-night Aug. 4 motion for a protective order or for setting Friday’s hearing — and has earned a reputation as the toughest sentencer in the federal court in Washington of defendants charged in the riot.

This is a developing story and will be updated.

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