The Smith motion is anything but “narrowly tailored.”
Indeed, short of a mobile “Get Smart” Cone of Silence, it is chilling to think of what Smith considered the broader option.
Smith told District Judge Tanya Chutkan in Washington, D.C., that Trump could “present a serious and substantial danger of prejudicing” his 2020 federal election interference case.
Smith compared Trump’s comments on the trial to the “disinformation” spread by Trump after the 2020 election — the subject of the indictment.
The motion states that Trump’s “recent extrajudicial statements are intended to undermine public confidence in an institution — the judicial system — and to undermine confidence in and intimidate individuals — the Court, the jury pool, witnesses, and prosecutors.”
I have long criticized Trump’s inflammatory comments over these cases, but Smith’s solution veers dangerously into core political speech in the middle of a presidential election.
Ironically, Smith’s move will likely be seen as reinforcing Trump’s claim of intentional election interference by the Biden Administration.
I do not view it that way, but I do believe Smith is showing his signature lack of restraint in high-profile cases, a tendency that led to the unanimous overturning of his conviction of former Virginia Republican Gov. Robert McDonnell.
Smith seeks to bar comments “regarding the identity, testimony, or credibility of prospective witnesses” and “statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.”
Gag orders have become commonplace in federal trials, particularly high-profile cases.
This is, however, no typical case.
Smith has pushed for a trial before the election and the court inexplicably shoehorned the trial into a crowded calendar just before the Super Tuesday election.
Judge Chutkan previously stated that “I cannot and I will not factor into my decisions how it will factor into a political campaign.”
This motion, however, would impose substantial limits on a national political debate and begs the question of whether the court is failing to balance the rivaling constitutional interests in this unprecedented situation.
It could not only test Chutkan’s position but prompt an early appeal.
One of the top issues in this presidential campaign is Trump’s insistence that the Justice Department and the criminal justice system have been weaponized by Democrats.
He was running on that issue even before the four separate criminal cases were filed against him in Florida, Georgia, New York, and Washington, D.C.
More importantly, it is an issue that is resonating with tens of millions of Americans.
One poll showed 62% of the public viewed the prosecutions as “politically motivated.”