Trump will not appear at the court hearing in Washington this Friday. The media entourage that accompanies him and delivers the images that otherwise go around the world is also missing, for example when he was accused of “conspiracy against the USA” eight days ago.
A procedural question needs to be decided: What can Trump and his lawyers say publicly about the trial, the witnesses and the evidence? After hearings with Special Counsel Jack Smith and Trump’s attorneys, Judge Tanya Chutkan chose the middle ground: a partial muzzle.
She rejects Special Counsel Jack Smith’s narrowly worded request. He wanted to ban the ex-president from speaking publicly at all about evidence in the proceedings against him and from commenting on it. In the past he has abused his media power to intimidate witnesses.
Even as an accused, the ex-president has a “right to free speech”. But it’s “not absolute,” Chutkan says. He should not make “sensitive details” public. She reiterates the condition that Trump must not intimidate or influence witnesses. Examples of “sensitive material” are: information that can be used to identify those involved in the procedure; evidence from house searches; Recordings, transcripts and reports of statements. She also rejected the defense’s request to give more people on Trump’s team access to “sensitive evidence.”
The hearing on Friday shows that the US judiciary is currently dealing with parallel proceedings day after day in relation to Trump and is producing decisions with far-reaching consequences, even if the TV pictures are missing and they don’t immediately make the headlines. Behind the scenes, tricks and toughness are used to fight for every detail.
Trump faces fourth indictment in Georgia
Smith has just moved to start the main trial in Washington on January 2nd. That would be just before the third anniversary of the storming of the Capitol and the first US primary. Trump wants the trial to be delayed until after the November 2024 election.
In the middle of the week, Trump suffered a defeat in a struggle to release data on his Twitter account. Next week, he will face his fourth charge in Georgia for attempting to pressure the election commissioner to change the 2020 presidential election in his favor. If he were convicted there, as president – unlike at the federal level – he would have no right of pardon.
But first things first: When the indictment was brought on August 2, the judge at the time, Moxila Upadhyaya – also an immigrant to the United States like Tanya Chutkan – urged Trump that he would only remain free for the time being and under certain conditions. He must not intimidate or influence witnesses.
Trump’s media power can destroy people
But what does that mean in concrete terms for an accused who reaches millions with TV appearances, campaign speeches and via his social media channels? If he slurs people, it can cause Trump supporters to gather in front of their homes in an intimidating manner. A mob wanted to lynch Vice President Mike Pence during the storming of the Capitol on January 6, 2021 so that he would not certify Joe Biden’s proper election.
Special Counsel Smith had requested a narrow protective order. It should prohibit Trump and his elect from speaking publicly about “the identity, testimony or credibility of any witnesses” and “the guilt or innocence of the accused, the chances of success of the trial and the evidence”.
Tough battle for Washington court venue
In the capital’s judicial district, there are stricter requirements than elsewhere in the United States. There the charge of “conspiracy against the United States” will be heard, including Trump’s role in the storming of the Capitol and his attempts to overturn Biden’s election as president.
Smith argues that Trump has misused his media presence in the past to stir up sentiment against witnesses, judges, attorneys and other parties involved in proceedings against him. However, Judge Chutkan did not accept his view of muzzle protection for witnesses.
In the days since the indictment, Trump has lashed out at the capital and its judicial system. Washington is a “city of felt and decay”. It was “impossible that I get a fair trial in Washington DC”. In another post, he wrote that “a fair trial with this judge” was “impossible”. It has to take place elsewhere.
Right to free speech and unrestricted campaigning
Trump and his lawyers invoked the constitutional right to free speech. This is especially true for citizens who are conducting an election campaign.
This follows his general line of defense: freedom of speech regardless of truth. He was convinced that the election was not fair. He must be allowed to say that. And: His election campaign should not be restricted in terms of time or content. Therefore, court hearings only after the election.
If you follow me, I follow you.
Donald Trump on Truth Social
Lawyers express different views in the US media. The indictment is public knowledge, “it would be unfair if the ex-president is not allowed to answer publicly,” says Stephen Gillers, a law professor at New York University. Arthur Berger, a Washington attorney and ethics expert, disagrees. “Defendants do not have the same rights as other citizens. Judges can make conditions.” Trump’s threat “If you follow me, I will follow you”, which he posted on August 3 on his online platform Truth Social, could be understood as intimidation.
Smith was successful in the dispute over the judiciary’s access to protected data in Trump’s Twitter account. He is not concerned with the statements themselves, they are public. But information about when and where Trump wrote it. And which people received and retweeted them – and possibly understood them as instructions for action. Twitter has been fined $350,000 for not immediately complying with the release order.
