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Harry Litman, the senior legal affairs columnist for the Los Angeles Times opinion page, is a former U.S. attorney and deputy assistant attorney general.
It’s been clear for some time that U.S. District Judge Tanya Chutkan will jail Donald Trump for contempt or impose other severe penalties for his behavior only if he leaves her no choice. Based on the former president’s response to the Justice Department’s motion for a limited gag order in the Jan. 6 case, it seems that’s exactly what Trump is aiming to do.
Trump is answering the insurrection-related charges in two arenas, legal and political. His big bet is on the political side: that he can win the presidency, quash the two federal indictments against him and at least keep the state prosecutions at bay as long as he is in office.
It’s an unprecedented strategy and a terrifying one for the country. It’s also understandable in light of the overwhelming evidence against him, which makes outright acquittal highly unlikely.
On the legal side, until this week, Trump’s lawyers have served up lousy but largely conventional arguments before Chutkan and the judges presiding over his three other indictments. Trump’s latest filing, by stark contrast, abandons any pretense of a coherent attempt to persuade Chutkan not to impose a gag order.
The motion for a limited gag order by special counsel Jack Smith’s team recited a litany of incendiary claims by the former president. Trump has disparaged the court, the prosecution and the prosecutors; threatened to pollute the jury pool; and heightened the risk of attacks on prospective witnesses and court personnel. Indeed, Chutkan herself was the object of an ominous threat by a Texas woman who called her chambers and warned, “If Trump doesn’t get elected in 2024, we are coming to kill you.”
Any other defendant who behaved as Trump has would have had the conditions of bail revoked and found himself awaiting trial in jail. That hasn’t happened in this case — and probably won’t for as long as the court can forestall it — only because everyone involved recognizes the grave implications of incarcerating the probable Republican nominee for president.
Having set out this alarming body of evidence, federal prosecutors requested a “narrowly tailored” gag order essentially directing Trump not to trash the process and intimidate prospective witnesses.
Trump’s response Monday was a screed that makes sense only in the context of his broader political strategy.
The brief denigrates the Justice Department’s motion as “an obvious attempt by the Biden administration to unlawfully silence its most prominent political opponent.” Elsewhere, Trump’s lawyers write that being “keenly aware that it is losing” the coming presidential election, “the prosecution seeks to unconstitutionally silence President Trump’s (but not President Biden’s) political speech on pain of contempt.”
It is the repeated insistence that the effort to impose a limited gag order comes from “the Biden administration” — the brief contains no fewer than nine references to Biden and his government — that is the tell. It’s sheer demagoguery for the benefit of Trump’s political base to assert that the criminal charges against him are the result of a political command by the president. Any half-sophisticated observer knows it’s a lie. The barrier between Biden and Attorney General Merrick Garland is only reinforced by the separation between Garland and Smith, who has a broad measure of independence from the department.
Trump’s stance is less likely to convince Chutkan than to provoke her. In her first hearing in the case, the judge admonished the parties that she would not let her decisions be influenced by the election.
By substituting political rhetoric for legal substance and relying on patently false characterizations, Trump is doubtless reducing his prospects for defeating the Justice Department’s motion, which is grounded in law and Trump’s own impropriety. He is evidently happy to increase the odds of a gag order. It would serve his political strategy of posing as a messianic martyr doing battle with the deep state for the sake of his supporters’ retribution.
I expect Chutkan to impose some form of limited gag order on Trump; the record supporting it is too strong to ignore. It may even be accompanied by a tongue-lashing of the former president. Her goal will be to save room for intermediate forms of discipline that keep Trump in line and stave off lowering the ultimate boom and putting him in jail.
But regardless of how much leeway she leaves herself and the defendant, Trump may be determined to force the judge’s hand. Monday’s filing suggests that’s where this is heading.