Scott Gurvey's Public Offerings

(There is an update below)

I really did not want to write about Donald Trump again so soon. I hate the way Trump dominates the news. I hate the way he steals our attention when we should be facing up to our challenges. I hate the way he sucks all the oxygen out of a room when his name is just mentioned. But Trump loves the attention, and he won’t stop attracting it. The danger our democracy faces from Trump is so great it is incumbent on anyone who values truth to speak out.

Trump was arraigned on Thursday, August 3rd, on four federal felony counts arising out of his action to retain his office even though he had lost his bid for reelection. He pled not guilty, and he was allowed to leave on what is known as a personal appearance bond. That bond doesn’t require that a defendant put up any money unless they violate the terms of the release or fail to show up in court.

Magistrate Judge Moxila Upadhyaya, set extremely limited conditions. One, don’t commit a new crime, a new alleged crime, while you’re out on release, and two, don’t retaliate against anyone you think is a witness, and don’t talk with people who you think might be witnesses without the presence of their lawyers.

Less than one day later Trump posted the item at the top of this column, “It you go after me, I’m coming after you.”

Trump defense lawyer John Lauro made the rounds of the Sunday shows, arguing that Trump’s post was just his client exercising his right to freedom of speech. That is apparently Lauro’s number one argument against all the charges pending against his client. Prosecutors have drawn a clear distinction between Trump’s speech casting doubt on the election and the actions he allegedly took to defraud people out of having their votes counted.

You look at it. Is it free speech? Or is it another run at scaring and intimidating potential witnesses, potential jurors and judges themselves before the upcoming trials?

Prosecutors reacted that same day to the post, asking the judge to issue a protective order limiting what Trump can say in public during the period prior to trial. Trump doubled down:

It will be interesting to see, as the multiple Trump trials unfold, if his freedom of speech defense gets any traction. In the meantime, we are being treated to the intricacies of pre-discovery motion practice. In asking for a protective order, prosecutors make it clear they are afraid Trump will make public information, especially secret grand jury testimony, which can endanger witnesses and contaminate the pool of potential jurors.

Already Trump’s exhortations have resulted in a significant increase in threats directed against the judges and prosecutors. Additional security has been ordered for both. The personal attacks on Judge Tanya Chutkan seems to be a questionable strategy. Judging by precedent, it is unlikely Trump will succeed in replacing the judge or the Washington, D.C. venue.

National security lawyer Bradley Moss told CNN, “This crime happened in D.C., the alleged charges, all this occurred in D.C., the victim is in D.C. This trial is happening in D.C., and the recusal is extremely thin. Yes, the judge made some remarks in January 6 criminal cases about Trump, but the indictment, as [special counsel] Jack Smith made it very clear, is largely not about January 6 itself, it’s everything that led up to January 6.”

Former Trump White House Press Secretary Stephanie Grisham on Friday said Trump’s recent threats posted to social media were “chilling,” she claimed she is getting more hate mail and threats than typical. “I get a lot of hate, but this AM I woke up to 10x the usual amount & some extra frightening threats,” the former Trump representative said on X/Twitter. “Then I saw I was on FOX this AM & now understand. I guess Trump supporters only believe in the 1A when it applies to him.”

Trump filed an opposition to the motion of a protective order, citing his freedom of speech rights and charging that the Biden administration is using the judiciary to aide his reelection bid. Within hours prosecutors fired back that Trump is electing to try the case in the media, rather than in the courtroom.

*****

Update – August 11, 2023

At a hearing Friday, August 11, Judge Chutkan said she will issue a less restrictive protective order against Donald Trump than the one sought by prosecutors regarding how much the ex-president can say publicly about the charges that he tried to steal the 2020 presidential election.

The government did not justify its request to subject all the information in the case to a protective order, Chutkan said during a hearing in which prosecutors and attorneys debated the details of the order.

Chutkan also told Trump’s lawyers that “your client’s defense is supposed to happen in this courtroom, not on the Internet.”

Protective orders are routine in complex cases. What’s unusual here is that the defendant is a former president who is seeking the White House again in 2024, one who has aggressively attacked prosecutors as politically motivated.

During the hearing, Chutkan warned that she would closely scrutinize any Trump statements that could be interpreted as attempts to threaten, intimidate, or harass witnesses, the main concern of special counsel Jack Smith and his team.

#####