Smith’s Gag Order Would Essentially Ban Trump from Criticizing Biden, Critics Say

Critics of Special Counsel Jack Smith’s gag order request against former President Donald Trump say it is too broad and would essentially ban a presidential candidate from criticizing his opponent, in an unprecedented restriction during a presidential election.

“The trump gag order is truly insane. Headlines didn’t capture how broad it is. Biden’s DOJ wants to ban trump from even suggesting Biden is behind his prosecution. He also isn’t allowed to say that he can’t get a fair trial in an overwhelmingly dem district,” Gregg Re, a writer for the Daily Wire and former head writer for Tucker Carlson Tonight, posted on X.

Smith, in his motion filed on Friday, complained about an August 2, 2023, post by Trump on Truth Social that simply quoted Fox News show host Jesse Watters. Smith wrote:

… . And on August 2, the defendant posted a quote alleging, without any basis, that the indictment that a federal grand jury in this case returned had been directed by the sitting president: “‘Joe Biden directed his Attorney General to prosecute his rival. This is not an independent Justice Department, this is not an independent special counsel. This is being directed by the Commander-in-Chief.” Through such posts, the defendant is attempting to submit his false and inflammatory claims to the public and jury pool outside of court, because he knows that any such claims made before the Court in the form of motions to suppress or of vindictive prosecution will fail because they must be supported by evidence—of which there is none.

Jason Willick, a Washington Post columnist, wrote Tuesday in a piece criticizing the gag order:

Smith’s motion, which District Judge Tanya S. Chutkan has to rule on, claims to seek only a “modest” gag order. That’s not true. The prosecutor wants to bar Trump from “disparaging and inflammatory” statements not just about potential witnesses but also about “any party” to the case in United States v. Trump. That seems to include the prosecution and Biden’s Justice Department in general.

Willick also criticized Smith’s argument that Trump, with his August 2, 2023, TruthSocial post, “is attempting to submit his false and inflammatory claims to the public and jury pool outside of court.”

Willick wrote: “This passage is revealing. It shows the breadth of the gag order Smith seeks: He wants to prevent Trump from tying Biden to this prosecution during an election in which the two might face each other.” He also argued there was some basis for Trump’s post, writing:

And there is some basis for Trump’s assertion. The New York Times reported in April 2022 that Biden had “confided to his inner circle that he believed former President Donald J. Trump was a threat to democracy and should be prosecuted, according to two people familiar with his comments.” The White House has ways of influencing an attorney general short of giving him or her explicit directives — such as through media leaks.

Willick also called such a gag order unprecedented for a presidential candidate:

Criminal defendants can be subject to gag orders and other restrictions before trial. But asking whether Smith’s proposed order conforms with precedent is pointless because there is no comparable case. As former Obama White House counsel Greg Craig wrote, a gag order against Trump would represent “the first time that a federal judge imposed meaningful limits on the statements and freedom of a major presidential candidate.” Not only that, but it also would represent the first time an incumbent administration has imposed a limit on the freedom of an opposing candidate to criticize the administration he is trying to replace.

He also called Smith’s mention of “respecting the defendant’s First Amendment rights” at the end of his motion “laughable.”

“He wants the defendant’s First Amendment right to speak — and the public’s opportunity to hear an open election debate — to bow to the criminal-legal process,” Willick wrote.

“The Biden Justice Department and the GOP are forcing a stark choice between the sanctity of a criminal trial and the openness of a democratic election. Which takes precedence? The answer belongs to voters, and Smith might not like what they decide,” he concluded.

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