Donald Trump banned from attacking Jack Smith and witnesses in revived gag order

Former President Donald Trump’s statements calling special counsel Jack Smith “deranged” and suggesting witnesses who cooperate with prosecutors are “weaklings” may no longer be permissible under a gag order that was reinstated this weekend in the election subversion case against Trump.

U.S. District Judge Tanya Chutkan indicated in an opinion Sunday night that at least one such comment, which Trump made while the order was temporarily lifted this month, would now “almost certainly violate” the order.

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Originally issued on Oct. 17, the order prohibited parties in the case from “making any public statements, or directing others to make any public statements, that target” Smith or his staff, defense attorneys or their staff, court staff, and “any reasonably foreseeable witness or the substance of their testimony.”

Trump’s attorneys argued the order was “breathtakingly overbroad” and that it prevented Trump, the leading GOP presidential candidate, from making almost “any public comment regarding a wide and undefined set of individuals and subjects.”

“In doing so, the Gag Order shields public officials in the highest echelons of government from criticism, including key political rivals,” Trump’s attorneys wrote.

The American Civil Liberties Union, which frequently aligns with left-leaning causes, made a surprise intervention in the case, filing a motion to submit an amicus brief in defense of Trump.

While the ACLU noted its concerns about Trump’s speech, the group said the use of the word “target” in the gag order was “unconstitutionally vague” and should have been narrower so as to ban only “imminent threats against individuals” or “conduct that would interfere with the administration of justice.”

“The mere fact that others have threatened actions against trial participants after hearing [Trump’s] words is not enough,” the group wrote.

Chutkan’s opinion Sunday night was issued alongside her reinstatement of the gag order after she temporarily honored a stay Trump requested this month while he appealed the order.

Chutkan pointed to two recent examples of Trump’s speech, which occurred in the form of posts to Trump’s social media platform Truth Social, to argue that her order was in fact specific enough.

In one example, Trump criticized the “Election Rigging Biden Administration” and the “Corrupt Trials” against him. In another, Trump opined on a report about an immunity deal his former chief of staff Mark Meadows, a clear witness in the case, allegedly reached with Smith. Trump said people who would take such a deal are “weaklings and cowards” and that he did not think Meadows “would lie about the Rigged and Stollen [sic] 2020 Presidential Election.”

The first example, Chutkan said, was perfectly within the realm of permissible speech.

The second example, however, “singles out” a foreseeable witness and “could readily be interpreted as an attempt to influence or prevent the witness’s participation in this case.”

Chutkan said the two examples make clear her order is not “arbitrary or standardless.”

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As a condition of Trump’s pretrial release, he was also prohibited from intimidating witnesses, which he still must abide by regardless of the gag order.

Trump’s appeal on the order remains pending.