How Judge Chutkan Could Tame Trump
Judge Tanya Chutkan warned Donald Trump not to make 'inflammatory statements' that could taint the jury pool or threaten witnesses or else his trial may be expedited.
Last Friday, the first court hearing in the federal January 6 case against Donald Trump took place before the judge assigned to oversee it, Judge Tanya Chutkan of the D.C. District. At issue was what normally would be a routine protective order governing how discovery (i.e. the more than 11 million pages of documents turned over to the defense by the prosecution) would be protected against public disclosure by Trump and his counsel.
Importantly, that discovery includes transcripts of witness testimony before the grand jury and of private interviews with investigators.
The need for a protective order was more than an academic exercise. Trump has already demonstrated his intent to intimidate prosecutors, the judge, and even witnesses. In one social media post, made on the Truth Social platform the day after his arraignment, Trump threatened, “If you go after me, I’m coming after you!” While his lawyers and spokespeople walked back the threat, saying it was addressed only to Trump’s political opponents, the implication was far broader, almost certainly by design.
What would prevent Trump, the government argued, from using what he learns from the discovery process to continue to intimidate witnesses who testified against him, or to taint the jury pool in advance of trial through selective leaking? Accordingly and properly, the government moved for a broad protective order from Judge Chutkan.
The Protective Order she entered will govern the limits of what Trump would be permitted to record or in any way use, as well as who on Trump’s team would be allowed to see what. During the hearing, the parties voiced their disagreements before Judge Chutkan over whether all discovery, whether considered sensitive or non-sensitive, was to be covered by the Order. But the real fight came as a proxy of sorts for a primary defense that Trump hopes to raise, both in and out of court, under the guise of “free speech.”
Free speech versus orderly justice
Whether it’s Trump’s claim that his false statements about a stolen election are protected speech, or his argument that he should have broad rights to hit back against political opponents over the question of his guilt on the 78-and-counting charges, the message is clear: Trump wants to wage a war of words while using the First Amendment as a shield.
“I will talk about it. I will,” Trump promised a crowd of his supporters in New Hampshire after his second federal indictment. “They’re not taking away my First Amendment right.”
He then wasted little time blasting Special Counsel Jack Smith and the judge personally over social media, just days before the hearing.
Deranged Jack Smith is going before his number one draft pick, the Judge of his 'dreams' (WHO MUST BE RECUSED!), in an attempt to take away my FIRST AMENDMENT RIGHTS — This, despite the fact that he, the DOJ, and his many Thug prosecutors, are illegally leaking, everything and anything, to the Fake News Media!!!
At the Protective Order hearing, Judge Chutkan was firm and clear in her message. “Mr. Trump, like any other American,” has a right to free speech under the First Amendment, she said. But that right, she added, “is not absolute.”
“While I intend to assure Mr. Trump of all rights that any citizen would have, I also take seriously my obligations” to prevent his case from devolving into “a carnival atmosphere of unchecked publicity and trial by media rather than our constitutionally established system of trial by impartial jury.”
Judge Chutkan was no doubt well aware of other public diatribes Trump had issued against the prosecution, against witnesses, and against her. She understood what Trump had implied, even when names were not directly included in his posts or speeches. And she directly addressed the effect of such “ambiguous” threats against others.
“I do want to issue a general word of caution — I intend to ensure the orderly administration of justice in this case as I would in any other case, and even arguably ambiguous statements by the parties or their counsel,” she said, could be deemed to be attempts to “intimidate witnesses or prejudice potential jurors” that could lead her to take action.
A political campaigner versus criminal defendant
Trump’s lawyer, John Lauro, pressed the point about free speech. He argued that Trump’s situation was special because Trump is the leading candidate for the GOP nomination, and he needs to be able to operate his campaign without the prosecution throwing a “red flag” over things he said, including things that might have come from his memory of what a witness said. The proposed Protective Order, Trump’s attorney Lauro claimed, would create a “chill” over his client’s right to defend himself during a political campaign.
“These are “uncharted waters,” Lauro said. “President Trump has the right to respond.”
Judge Chutkan remained unimpressed, however, noting that she understood that Trump has a “day job.”
“He is a criminal defendant,” the judge pointed out. “He is going to have restrictions like every other criminal defendant.” She added that she was not going to “allow him any greater or lesser latitude than any defendant in a criminal case.”
Notably, she stated that “the fact that he is running a political campaign” will have no bearing on how she handles things inside her court and “must yield to the orderly administration of justice.” She added, “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.”
Court of opinion versus court of law
Judge Chutkan looked with particular disfavor upon Trump’s habit of airing matters relating to the trial publicly. She admonished Lauro repeatedly, saying to him, “Your client’s defense is supposed to happen in this courtroom, not on the internet.”
She then quoted a Supreme Court case at Lauro. “Legal trials are not like elections to be won through the use of the meeting hall, the radio and the newspaper,” Judge Chutkan said, pulling from a 1941 Supreme Court opinion written “before the internet.”
“This case,” she concluded, “is no exception.”
She went out of her way to caution Trump against getting on her bad side. “I caution you and your client to take special care in your public statements in this case,” she added. “I will take whatever measures are necessary to protect the integrity of these proceedings.”
Protective Order versus pre-trial release conditions
While the hearing on Friday was intended to settle the scope and application of the Protective Order, Judge Chutkan’s admonitions extended to far more dangerous territory for the ex-president: his pre-trial release conditions.
When Trump was arraigned, he was reminded of those conditions by Magistrate Judge Moxila Upadhyaya, and he signed a document acknowledging that his release pending trial was conditional. Those conditions included that he not commit a crime while released, and also this rare admonition from the magistrate judge:
Finally, sir, I want to remind you that it is a crime to try to influence a juror, or to threaten or attempt to bribe a witness or any other person who may have information about your case, or to retaliate against anyone for providing information about your case to the prosecution, or to otherwise obstruct the administration of justice.
Apparently, the judges in the D.C. circuit know and understand how Trump is likely to act.
That’s probably why Judge Chutkan repeatedly stated that she would hold Trump accountable for statements that could possibly endanger witnesses, reminding his lawyer that the terms of Trump’s release prohibited any witness tampering or intimidation. On the subject of witnesses, she noted that they “may not have the type of protections that he has.” She added, likely with some premonition, “I see the possibility for a lot of problems here.”
Whatever measures are necessary
Judge Chutkan made it clear that she would take “whatever measures are necessary” against Trump should he violate the Protective Order or his pre-trial conditions. But one warning probably struck a particularly bad nerve with Trump: her ability to set and control the trial date.
Trump’s greatest weapon is time. He hopes to run out the clock on the federal cases so that he has a chance to win them by getting elected. From there, he can order a new attorney general to drop the federal charges. He could even try to grant himself a pardon, or at least pardon all his co-conspirators so that they can’t be flipped as easily and would face no consequences.
But all that goes out the window if the trial starts and concludes in early 2024. Special Counsel Jack Smith has asked for a trial date of January 2, 2024–a date that would wrap up the trial well before most of the GOP primaries occur. And Trump couldn’t as easily cry “election interference” if the election is still so far off from the trial. In fact, if he claims that this is all about interfering with his campaigning, then an early trial date is logically to everyone’s advantage.
In court, it’s the judge who sets the trial date, giving Judge Chutkan enormous say over how this all plays out. Were she to grant the early trial date requested by Smith, that would place a lot of new pressure on Trump. Specifically, he could be even convicted and then sent to prison by mid-February.
That’s why this statement by her was so telling: She directed Trump and lawyers to “take special care” that their public statements could not be construed as intimidating witnesses or tainting the jury pool, adding that the more “inflammatory statements” there are, the greater the urgency will be to go to trial to ensure an impartial jury.
“Even arguably ambiguous statements from parties or their counsel, if they can be reasonably interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process.
“The more a party makes inflammatory statements about this case which could taint the jury pool … the greater the urgency will be that we proceed to trial quickly.”
This is, frankly, a novel and possibly brilliant way to tame Trump. Each time he drops more poison into the public well, it will give the judge more reason to get a jury empaneled quickly.
It remains to be seen how far he dares test the limits of the judge’s patience. Already, since Friday, Trump has resumed posting attacks, including against a grand jury witness in Georgia, while amplifying others’ attacks against Judge Chutkan.
She’s brilliant. The more Trump ‘talks’ the faster the trial comes. And we all know he can’t help himself so let’s get that trial scheduled! 🤗
I still think that Trump will deliberately violate whatever orders/terms are set out by the Judge. He wants to be a martyr and rile his base up even more.