Monday’s oral argument in the U.S. Court of Appeals for the District of Columbia Circuit on the validity of Judge Tanya Chutkan’s limited ban of defendant Donald Trump’s pretrial free speech rights underscores the uniquely problematic nature of the most important criminal prosecution in the nation’s history.
While Chutkan’s pretrial gag order was narrowly drawn to preclude only gangsterlike attacks on prosecutors, court staff, and trial witnesses—a much narrower ban than the government had sought—the former president’s lawyers argued that absent their client’s remarks having crossed any criminal lines, the First Amendment precludes imposition of the gag order. After a notably long 2½-hour debate about where such lines can and should be drawn, and the level of threat to witnesses that must be established before a gag order can be issued, the court adjourned to consider the matter.
It should not take long.
Indeed, it is difficult to imagine the court accepting the completely “hands off” approach argued by Trump’s attorneys, as it would eliminate Chutkan’s ability—and obligation—to control matters in her own courtroom. It would also create a completely unworkable standard in other criminal cases, or place Trump in a separate, protected status all to himself. Yet, there is real fear that drawing any meaningful lines in this unique situation may create a precedent that limits future political speech.
Hovering above it all is the reality that as the appeals court draws the line for today, it must also consider the realities of tomorrow. The problem of Trump’s outbursts and interference will surely arise again and again, most importantly during the jury selection phase and once the jury is seated. This seemed to be understood acutely during Monday’s oral arguments by the appellate judges, who questioned Trump’s attorney at length about the potential for a gag order restricting discussion of jurors. “It is revealing of the fortitude that you accord to the First Amendment and the really lack of any role for orders protecting the judicial process and that’s what I’m hearing,” Judge Nina Pillard told Trump’s attorney after he argued that a gag order restricting the posting of a juror’s address—one of the most basic protections imaginable and a protection commonly used in high-profile prosecutions—might not pass constitutional muster. The jury issue will be foremost in the appellate panels’ minds when they craft their order.
Jury selection in any high-publicity trial is more difficult and time consuming than in the typical criminal case. Jurors must first be individually questioned about what they have read in newspapers, seen on the internet, heard on the radio, or watched on TV. Based on those answers, they are questioned about the impact that exposure may have had on their ability to be fair and impartial.
Once chosen, jurors must stay away from all media accounts of the trial and conversations about the matter with friends or relatives. In certain high-publicity cases, or in, say, mob cases in which the defendant poses a potential physical threat to jurors, the jury is “anonymous,” with their names, home addresses, and employment information kept from the parties. In the most extreme situations, jurors are brought to court and returned to their homes each day of trial by the U.S. Marshals Service.
The difficulties in jury selection in the Trump trial are astronomically greater than any case in history. The defendant has far more media power than any prior defendant and has shown his clear intention to use that power to thwart the criminal justice system in any way possible. Especially as he gets closer and closer to a jail sentence, his efforts to blow everything up will only increase.
Each media post, newspaper account, interview, and campaign speech provides an additional media burden on prospective jurors, the impact of which will aggregate and reach its crescendo right before jury selection, making it increasingly harder for potential jurors not to have been affected.
Finding a fair and impartial jury will get increasingly more difficult without at least some meaningful constraints imposed now.
But what about fears of potentially creating a precedent that will negatively affect First Amendment rights, particularly in the context of political campaigns?
No worries—the conduct at issue is unquestionably unprecedented. As such, whatever rulings that arise will be what is called in the law sui generis, that is, predicated on unique facts and circumstances that are, in effect, impossible to be repeated in future matters.
Indeed, any other defendant who attacked prosecutors, called for the death of a key witness, or made any of the dozens of unacceptable claims and threats Donald Trump made would have long ago been found in criminal contempt of the court’s orders, and/or in violation of his bail conditions, and ordered to jail.
An opinion by the circuit panel upholding the ban does not even have to cover its ruling with self-serving escape clauses as the Supreme Court did in Bush v. Gore, when it declared its decision to intervene in the 2000 election was somehow “limited to the present circumstances,” and thus, cannot be relied upon in future matters.
Any precedent created by a decision to meaningfully limit Donald Trump’s ability to thwart the American criminal justice system will, by definition, apply only to defendants who have used their substantial status, wealth, and an extraordinary media presence to threaten prosecutors, court officials, and witnesses.
As for the rest of the nation—the 99.99999 percent of us without the power, deep emotional problems, and total disregard for anyone or anything else—the path toward justice will have been made a little less rocky.
Trump’s self-serving misuse of the First Amendment must be rejected. To extrapolate from the old saw about the limits on First Amendment rights: If you can’t scream fire in a movie theater, you can’t broadcast lies to encourage others to burn it down.
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