Former president and now criminal defendant Donald J. Trump has been indicted for his alleged role in the violent attack by thousands of his supporters on the U.S. Capitol on Jan. 6, 2021. As Trump faces a trial in the District of Columbia, U.S. Prosecutor Jack Smith claims that ever since Election Day 2020, Trump has been attacking District residents, federal district judges, prosecutors, and potential jurors and witnesses.
Although he claims otherwise, Trump’s self-assumed and voluntary candidacy for president is irrelevant to his present legal situation. And because of his criminal indictment, Trump is already under U.S. District Court Judge Tanya Chutkan’s legal jurisdiction — i.e., he’s not in jail right now only because she’s allowed him out on bail.
A judge can impose a restrictive order when a defendant tries to undermine the fair and proper administration of justice by tampering with the jury pool and making threats to the judge, the prosecutors, and potential or actual jurors.
In his Sept. 15 motion, Smith requests a court order from Judge Chutkan to restrict “certain prejudicial extrajudicial statements” by the defendant—in other words, to “gag” him.
The problem for Judge Chutkan is how to balance Trump’s constitutional rights to presumption of innocence, free speech, and a fair trial with the people’s right to competent government and administration of justice. This balance must include safety for the judge, the prosecutor, judicial system employees, and jurors.
In response to this situation and considering his history of unbridled and baseless attacks, Judge Chutkan can be expected to issue a well-crafted and common-sense order to restrict defendant Trump’s verbal and written utterances. She is likely to instruct him—especially because he’s on bail—to observe strictly the letter and spirit of her order and to clearly warn him that he might be locked up pre-trial if he does not.
Based on his well-known patterns of behavior, we can presume that additional vituperation and threats will soon be forthcoming from Mr. Trump.
If Judge Chutkan then concludes that he has violated her order, look for a quick hearing and the real possibility of Trump being banned from any sort of media. Or, he might be jailed pre-trial. She can also decide to advance the start of Trump’s criminal trial, now set for March 4, 2024.