Turley On Gagging Trump

Jonathan Turley has an updated and expanded version of his NYPost article on Jack Smith’s motion to gag Trump pre-trial. Turley has long questioned the use of gag orders on First Amendment gournds. Such orders, as I noted recently, have become rather common in federal trials. In past tweets and articles on the Trump case Turley continued that trajectory, but he also maintains that this gag order would be particularly dangerous because this trial is different—it is essentially based in politics and, thus, any gag order would necessarily involve political speech. I think he explains this well. I certainly hope that the collusion of the prosecutor and the openly biased judge in this case does lead to the early appeal that Turley foresees.

Of course, Smith has a history of patently politically motivated prosecutions—prosecutions clearly designed to take out Republican politicians who show potential on the national scene. That was clearly the case with his prosecution of former VA governor Bob McDonnell—which destroyed McDonnell politically but was trashed 9-0 by the SCOTUS. The merits of the prosecution itself wasn’t the point for Smith—the point was a hit on a Republican politician who might pose a threat for the presidency. It may turn out, however, that the American public has wised up to lawfare tactics and that this scheme to gag a populist enemy of the Ruling Class will backfire—by creating more sympathy rather than less for Smith’s, and the Ruling Class’s, target.

Follow the link for the whole expanded article. Here I excerpt what I take to be the nub of the case:

Gagging Donald: Turley Slams Smith's "Narrowly Tailored Motion" To Silence Trump

Below is a longer version of my column in the New York Post on the gag order motion docketed Friday night in Washington, D.C. by Special Counsel Jack Smith. While described by Smith as “narrowly tailored,” even a cursory consideration of the broad scope and vague terms belies such a claim. It would sharply limit the ability of former President Donald Trump to publicly discuss the evidence and allegations in a case that is now at the center of the presidential campaign.

…

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.

I have criticized the increasing use of gag orders for years due to concerns over the free speech. Typical orders often seek to shutdown public comments in the interests of protecting jury pools. Even “narrower” orders are written with vague terminology like “disparaging” and “intimidating” that expose defendants to punitive action if they cross uncertain lines in public defending themselves. No one seriously questions the ability of courts to limit the release of sealed material or to bar threatening comments directed at jurors, witnesses, or court staff. Moreover, there are laws on the books allowing for the prosecution of cases of threats or efforts to influence jurors or witnesses.

More importantly, this is 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.”

Think about that. Here we have a candidate running for the presidency, with broad public support. One of his key issues is the Dem weaponizing of DoJ for political purposes, and public support also revolves around this issue. What happens next? DoJ prosecutes the candidate and attempts to gag him with a wide ranging gag order. It’s difficult to see how the SCOTUS could maintain credibility if it fails to address this gag order, should it be allowed.