Trump puts courts in bind with criticism of judges

Andrew Goudsward, Associated Press

Donald Trump’s attacks on the US justice system face a fresh test next week when the federal prosecutor trying the former US president on charges involving his efforts to undo his 2020 election loss asks a judge to rein in “inflammatory” comments. The US special counsel bringing that case, Jack Smith, on Monday will try to persuade US District Judge Tanya Chutkan to impose new limits on public comments about the case by Trump, a request his attorneys have called a “desperate effort at censorship.” It is a problem that five US state and federal judges are wrestling with as Trump faces four upcoming criminal trials and a civil fraud case. Trump, the frontrunner for the Republican nomination to face Democratic President Joe Biden in the 2024 US election, has denied wrongdoing and has called the cases politically motivated.

New York state Justice Arthur Engoron already has faced off with Trump on the issue. The judge on Oct. 3 issued a gag order barring Trump from speaking about court staff after the businessman-turned-politician lashed out on social media at the judge’s law clerk. “Public statements about my staff are unacceptable and inappropriate, and I will not tolerate them under any circumstances,” Engoron, presiding over the civil fraud trial against Trump and his family business, said in issuing the order. Trump’s broadsides have put courts in a bind. Allowing them to continue risks undermining the judicial process, according to legal experts, but any efforts to constrain Trump could fuel his claims that the justice system has been “weaponized” against him.

“We’ve never had a criminal defendant with such a megaphone,” said Georgetown University law professor Michael Frisch, who studies legal ethics. Trump has called Engoron, who found that he and his family business committed fraud, “deranged.” Trump has cast doubt on Chutkan’s ability to give him a fair trial and called her “highly partisan.” Ahead of his civil fraud trial, Trump, without providing evidence, accused the US Justice Department of coordinating with New York state Attorney General Letitia James to damage his presidential campaign. “They’re all corrupt people,” Trump told reporters in the Manhattan courthouse.

Trump has castigated his adversaries in the cases against him, calling Manhattan District Attorney Alvin Bragg an “animal,” Smith a “thug” and James a “monster.”

“I will not be bullied,” James responded.

Smith’s team argued that Trump’s recent comments are part of the same pattern of menacing conduct that Trump showed after the 2020 election, including in the run-up to the Jan. 6, 2021, US Capitol attack by his supporters. Lawrence Stengel, a former chief federal trial judge in Pennsylvania, said it would be difficult to balance Trump’s free speech rights against the need for a fair legal process. “Are we going to allow a high-profile defendant with a soap box and an audience to consistently undermine and downplay the importance of the system that we all operate under?” Stengel asked. “That’s a real concern, but I’m not sure that it can be remedied with a gag order.”

Smith’s office is seeking an order barring Trump and others involved in the case from speaking publicly about prospective witnesses or making intimidating remarks about attorneys, court staff and potential jurors. Smith cited Trump’s “established practice of issuing inflammatory public statements targeted at individuals or institutions that present an obstacle or challenge to him.”

Trump’s lawyers have said their client is making “entirely valid criticisms” of the cases against him, which they said are protected by his free speech rights under the US Constitution’s First Amendment. “The prosecution would silence President Trump, amid a political campaign where his right to criticize the government is at its zenith, all to avoid a public rebuke of this prosecution,” Trump’s lawyers wrote in a court filing.

A spokesperson for Trump did respond to a request for comment. A spokesperson for Smith’s office declined to comment. One notable exception to Trump’s criticism is the judge presiding over the classified documents criminal case in Florida. US District Judge Aileen Cannon, who Trump appointed to the federal bench and who sided with Trump in a major court dispute before charges were filed, has instead faced criticism from Trump opponents.

Cannon, Trump told Fox News in July, “loves our country.”

According to legal experts, Chutkan may try to strike a middle ground on the gag order request, allowing Trump to make general statements disputing the allegations and condemning the prosecution, but barring statements targeted at individuals.

“It’s extremely complicated,” New York University law professor Rebecca Roiphe said. “It is acceptable to limit the speech of individuals like this when there’s a potential for it to interfere with an ongoing case. But at the same time, the speech here is such core political speech.”