OPINION: This article may contain commentary which reflects the author's opinion.
Legal expert and constitutional law professor Jonathan Turley dismantled special counsel Jack Smith over the latter’s latest attempt to at least partially gag former President Donald Trump.
Since he filed federal charges against Trump for allegedly mishandling classified documents and for his alleged role in ‘inciting’ the Jan. 6, 2021 Capitol riot, Smith has sought to prevent the former president from talking about — and criticizing — the indictments.
On Friday, Smith filed another request with a federal judge in Washington, D.C., seeking a “narrowly tailored” gag order to prevent Trump from making what Smith called “disparaging and inflammatory attacks on the citizens of this District, the Court, prosecutors, and prospective witnesses.”
But Smith isn’t trying to silence Trump alone. He also wrote in his filing, “A supplemental order that extends some of the prohibitions that apply to defense counsel to the defendant himself is particularly warranted.”
“Shortly after the indictment in this case was unsealed,” the filing said, “the defendant’s lead counsel began a series of lengthy and detailed interviews in which he potentially tainted the jury pool by disseminating information and opinions about the case and a potential witness and described in detail legal defenses that he plans to mount, including defenses that may never be raised in court or that may be rejected by the Court before ever reaching the jury.”
In a column published after Smith’s filing, Turley, a law school professor at George Washington University, wrote that there was a new addition to the late President Ronald Regan’s “nine most terrifying words in the English language.” (“I’m from the Government, and I’m here to help.”)
“After Friday night, we can add nine more: ‘a narrowly tailored order that imposes modest, permissible restrictions,’” he wrote.
“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,” Turley added, making a reference to a 1960s spy comedy starring Don Adams.
He continued:
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.”
Turley went on to note that while he’s long been critical of the former president’s “inflammatory comments” regarding his cases, the special counsel’s “solution” actually poses a major danger to “core political speech” that is at the heard of the First Amendment, and “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,” Turley wrote.
The law professor said while he doesn’t view the situation similarly, he believes that “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.”
He said that Smith is seeking to ban 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.”
And while he admits that gag orders are commonplace in high-profile federal cases, those involving Trump are anything but common or “typical.”
“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,” Turley continued.
U.S. District Judge Chutkan of the D.C. District, who is presiding over Trump’s case, previously said that “I cannot and I will not factor into my decisions how it will factor into a political campaign,” as Turley pointed out.
“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,” he said.
“It could not only test Chutkan’s position but prompt an early appeal,” he added, concluding: “There may be a judicial argument for gagging Trump, but it raises serious constitutional concerns. Is it really worth the cost?”
