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Jack Smith asks Judge Chutkan to throw Trump in jail if he continues his threats [1]

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Date: 2023-10-26  

Special Prosecutor Jack Smith has requested that Judge Chutkan reinstate her limited gag order on Trump and modify the conditions of his release. He laid out his argument in a 32-page submission oj Wednesday night. The big news was buried in the bottom of page 31.

Background

Judge Tanya Chutkan, the presiding jurist in Trump’s election interference trial in Washington DC, had issued a limited gag order prohibiting Trump from making any public statements, or directing others to make any public statements, that target

(1) the Special Counsel prosecuting this case or his staff;

(2) defense counsel or their staff;

(3) any of this court’s staff or other supporting personnel;

(4) any reasonably foreseeable witness or the substance of their testimony.

The judge did permit Trump to continue making disparaging remarks about officials not involved in the case — including President Biden — and against his political opponents in the GOP primaries. She also allowed him to say the case against him was politically motivated and that the process was rigged.

After Trump’s lawyers protested, Chutkan stayed her gag order to give Trump’s attorneys time to appeal her decision.

On Tuesday night, Trump posted this on his social media site:

Smith’s brief

On Wednesday evening, Jack Smith used this post and others — and remarks Trump had made to the media during his ongoing civil fraud trial in New York — to petition Chutkan to reinstate the gag order posthaste. In his submission , he laid out the grounds.

Smith started by pointing out that allowing Trump to escape a gag order was unprecedented.

“There has never been a criminal case in which a court has granted a defendant an unfettered right to try his case in the media, malign the presiding judge as a “fraud” and a “hack,” attack the prosecutor as “deranged” and a “thug,” and, after promising witnesses and others, “IF YOU GO AFTER ME, I’M COMING AFTER YOU,” target specific witnesses with attacks on their character and credibility, even suggesting that one witness’s actions warrant the“punishment” of “DEATH!”

Smith continues by dismissing Trump’s claims that the First Amendment protects his speech and therefore (as Smith puts it)

The most the Court can do, he [Trump] maintains, is either wait for harassment or violence to occur and then take remedial steps —such as ordering the removal of a particular post or, better yet from the defendant’s perspective, delaying the trial date —or ask defense counsel to “convey” the Court’s “instructions and admonition[s]” to the defendant, with “the expectation” that the defendant will choose to “abide by [the Court’s] instructions in that regard.”

Smith dismisses this ludicrous reasoning:

The First Amendment does not require such an ineffectual approach to protecting the integrity and fairness of the trial. To the contrary, the Court has both the authority and the duty to prevent trial participants, including the defendant, from engaging in extrajudicial speech that poses a substantial likelihood of material prejudice.

In other words, a criminal defendant cannot claim the Constitution allows them “to target disparaging and inflammatory comments at perceived adversaries, regardless of whether they are military generals, judges, election workers, or court staffers.” Because, “When the defendant does so, harassment, threats, and intimidation foreseeably and predictably follow.”

Smith also dismissed Trump’s claims that the now temporarily stayed gag order had effectively shut him up. In essence, Smith pointed out that Trump was doing, without penalty, the very things he claimed he could not do.

For example, on the day before the hearing, the defendant posted to social media that the government was seeking “to silence me, through the use of a powerful GAG ORDER, making it impossible for me to criticize those who are doing the silencing, namely Crooked Joe Biden, and his corrupt and weaponized DOJ & FBI.” The Order, however, leaves him entirely free to do those things. He can criticize the incumbent president and the Department of Justice. Indeed, he freely did so while the Order was in effect.

Smith also calls bullshit on Trump’s claim that can not talk about the trial by saying, “The defendant himself is free to describe those proceedings to his followers.” He adds:

What the defendant is fighting for here, however, is the right to go far beyond these sorts of measures so that he can continue using disparaging and inflammatory language that would never be put in a court filing, like “fraud,” “hack,” and “thug.” His failure to explain why such language is necessary only supports the inference that his objections to the Order do not stem from a legitimate concern with informing the public about his positions (which he is free to do), but rather with retaining his ability to target his perceived adversaries in a way that will foreseeably subject them to harassment, intimidation, and threat.

Smith argues that the gag order should be reinstated immediately — and that Chutkan should modify the defendant’s conditions of release because:

The defendant’s continued targeting of witnesses and repeated violations of a similar order in New York during the brief interval while the Order has been administratively stayed, not only illustrate the risks of suspending the Court’s appropriate order; they demonstrate why the Court should lift the administrative stay and modify the defendant’s conditions of release to protect witnesses from his attacks.

He then referred to Trump’s attack on Mark Meadows:

Yesterday, within hours of a news report about the purported testimony in this case of the defendant’s former Chief of staff, the defendant issued multiple prejudicial and threatening Truth Social posts to influence and intimidate the Chief of Staff and comment publicly on the subject of his testimony.

He then suggests a remedy. And it is here that Smith buried the lede:

Accordingly, the Court should modify the defendant’s conditions of release by making compliance with the Order a condition or by clarifying that the existing condition barring communication with witnesses about the facts of the case includes indirect messages to witnesses made publicly on social media or in speeches. By doing so, the Court will have at its disposal the compliance measures available under 18 U.S.C. § 3148 in addition to those available as a contempt penalty for violating the Order. Otherwise, without the Court’s intervention, the defendant will continue to threaten the integrity of these proceedings and put trial participants at risk.

The big story

What are the “compliance measures available under 18 U.S.C. § 3148?” This is what that part of the code says:

A person who has been released under section 3142 of this title, and who has violated a condition of his release, is subject to a revocation of release, an order of detention, and a prosecution for contempt of court.

“A revocation of release, an order of detention” is the legal version of “throw his ass in jail”. One of the penalties for contempt of court is incarceration.

The ball is in Chutkan’s court (pun intended).

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[1] Url: https://www.dailykos.com/stories/2023/10/26/2201828/-Jack-Smith-asks-Judge-Chutkan-to-throw-Trump-in-jail-if-he-continues-his-threats?pm_campaign=front_page&pm_source=trending&pm_medium=web

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