Think hard: Why, after allowing two state and two federal indictments of Donald Trump, each transparently political, would a federal prosecutor seek the rare step of “gagging” a former president, who also happens to be the leading GOP candidate?
Only one reason: fear.
The reason for this highly unusual step seems deeper than analysts are looking. On one hand, protecting a national security secret might justify a gag order, but there is none here.
Jury pools are continuously exposed to public information, thus methodically sifted in “voir dire,” a process that assures jurors selected will be “fair and impartial.”
Gagging a defendant is never done for that reason, no matter how well-known the defendant is. See if you can find a case recently, even historically, to silence a defendant protesting his innocence.
Nor is a gag order sought, let alone granted, because a prosecutor fears the defendant will speak publicly about his innocence and try to defend himself or herself to the public.
Far from it, defendants are typically told by their own counsel NOT to speak openly since anything said could be used against them by the prosecutor, no matter the allegations.
Notably, the federal prosecutor here, Mr. Jack Smith, was previously censured by the US Supreme Court (9-0) for misapplying federal law, specifically for political overreach.
Yet, by all indications, here we are again. We have questionable, seemingly political indictments. One is arguably based on evidence pulled in a violation of 4th Amendment guarantees – a “general warrant,” with armed agents swarming the former president’s home. The other appears to mock the 1st Amendment, criminalizing political speech – as never before alleged.
We see in these indictments, paired with two state indictments, the play of politics. Incredibly, briefing schedules sought by prosecutors mirror the presidential primary calendar, making the process – by all appearances and definition – deliberate “election interference.”
Ironically, against this backdrop and rather unexpectedly for the White House, Justice, and Democrat prosecutors, Mr. Trump – their target – has rocketed to the top of polls. He has climbed so high that, combining Republican, Independent, and Democrat voters, he would decisively beat Mr. Biden – if the race were today.
All this should give Americans pause. It is also embarrassing for Mr. Smith, Mr. Garland, and Mr. Biden, not to mention state political prosecutors. They all have egg on their face, a mess.
So, the answer?
Apparently, their latest flash of brilliance is to officially “gag” put a legal towel in the mouth of Mr. Trump. They want to stop him from speaking at all, as his words might “disparage the process” of being prosecuted or persecuted.
Like something out of Lewis Carrol’s Alice in Wonderland or the former Soviet Union’s definition of due process, the prosecutor’s request is to prevent Mr. Trump from speaking.
The irony is too rich and has not escaped Americans on both sides of the aisle. If not for such moments, what perchance is the 1st Amendment for? This order is wild overreach, panic.
Traditionally, the reason federal prosecutors do not seek “gag orders” against defendants, whether Al Capone, John Mitchell, or others, is that the credibility of the prosecutor, the credibility of the Justice Department, is presumed to be higher than that of any defendant.
Put differently: This federal prosecutor and Justice Department are afraid. They fear their constitutionally questionable, highly offensive actions will not hold up in public discourse.
Pointedly: They think Mr. Trump’s credibility supersedes – is higher than – theirs. Thus, they want him silenced. They fear his use of the 1st Amendment to defend himself.
And that…is EXACTLY why we have a 1st Amendment.
Justice knows they overstepped, overreached, and are viewed by more than half the country as having misused, misapplied, and even abused for political gain their non-partisan authority. They are abusing their powers. The disparagement they fear – is of themselves.
Bottom line: Seeking a gag order is wrong and shows fear. They have gone too far and know it.
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Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.
