Trump’s Freedom of Speech ‘Not Absolute,’ January 6 Judge Finds, Saying His Presidential Campaign Must Yield to His Criminal Case

Judge Tanya Chutkan promises an accelerated trial if the former president’s online outbursts do not abate.

AP/Sue Ogrocki
President Trump leaves a campaign rally at Erie, Pennsylvania. AP/Sue Ogrocki

Judge Tanya Chutkan’s statement that President Trump’s First Amendment right is not “absolute” brings into focus the emerging clash between judicial demands for courtroom decorum and the raucous ways of the digital campaign trail, which the 45th president has embraced with gusto. 

The remarks came during a Friday hearing where the parameters of a protective order were hashed out between Judge Chutkan, prosecutors, and Mr. Trump’s defense team. The jurist promised that she would “take whatever measures are necessary to safeguard the integrity of these proceedings,” including speeding them up. 

While Judge Chutkan settled for a compromise order that is neither quite as broad as prosecutors hoped for nor as curtailed as Mr. Trump sought, the hearing’s significance could lie in the jurist’s linking the trial’s pace to Mr. Trump’s commentary. Special Prosecutor Jack Smith has requested a trial date of January 2. The former president’s team appears to be pursuing a strategy of delay.     

The Friday conference centered on how much of the evidence that prosecutors have gathered for the January 6 case Mr. Trump will be allowed to share, and the conditions under which he will be allowed to review it. Judge Chutkan, an Obama appointee who’s become known for meting out harsh sentences to convicted January 6 protesters, observed that the “fact that he’s running a political campaign has to yield to the orderly administration of justice.” Mr. Trump has called for her recusal and a change of trial venue to West Virginia from District of Columbia. 

Judge Chutkan observed that “Mr. Trump, like every American, has a First Amendment right to free speech,” while indicating that she is unlikely to grant him special deference with respect to his status as a leading presidential contender. She added, “If that means he can’t say exactly what he wants to say about witnesses in this case, that’s how it has to be.” 

Mr. Trump has publicly criticized Vice President Pence, who is both his political rival and a witness in the criminal case against him. Judge Chutkan warned that any efforts, even “ambiguous” ones, to “intimidate witnesses or prejudice potential jurors” will precipitate punitive “measures” from the bench. 

The judge accused Mr. Trump’s lawyer, John Lauro, of “conflating what your client needs to do to defend himself and what your client wants to do politically.” The possibility that Mr. Trump could win the presidency and pardon himself could be one such conflationary scenario, notwithstanding Judge Chutkan’s admonition that Mr. Trump’s “defense is supposed to happen in this courtroom, not on the internet.”

The more that defense transpires outside the four walls of the United States District Court for the District of Columbia, Judge Chutkan suggested, the more acceleration Mr. Trump can expect with respect to his trial. She warned that the “more a party makes inflammatory statements about this case which could taint the jury pool,” the “greater the urgency will be that we proceed to trial quickly.”

While Judge Chutkan’s finding that the First Amendment’s protections are not ironclad accords with Supreme Court law — one cannot yell “fire” in a crowded theater, after all — Mr. Trump appears to be fronting just such a defense to charges of conspiracy and obstruction. Mr. Smith’s indictment argues that those liberties became unavailing when Mr. Trump worked to “remain in power.”

Judge Chutkan asserted that the “existence of a political campaign is not going to have any bearing on my decision. I intend to keep politics out of this.” That could be tested once the court turns to jury selection. There and at trial, Mr. Trump is likely to endeavor to repudiate her observation that “I haven’t seen any evidence this is politically motivated.” 

The New York Sun

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