Judge Chutkan must change tack with Donald Trump: Former federal prosecutor

A former federal prosecutor says the judge in Donald Trump’s election fraud trial should either throw him in jail or hold him in contempt the next time he violates his gag order.

Neama Rahmani said Newsweek on his reaction to the Washington, D.C., appeals court’s decision to reinstate Judge Tanya Chutkan’s order against Trump. The appeals court narrowed her order so Trump could freely criticize Justice Department special counsel Jack Smith, who is the lead prosecutor in the case.

However, the appeals court ruled that Trump could not criticize the Smith family, as he has done in the past, nor officials and court officials after they received a barrage of threats from Trump supporters.

Rahmani, a former federal prosecutor and now president of the law firm West Coast Trial Lawyers, said it’s time for Chutkan to be tough on Trump.

“This is all pointless unless Judge Chutkan actually enforces the gag order and revokes Trump’s bail or holds him in contempt.” So far, no judge has been willing to do it, except for small, meaningless fines,” Rahmani said. If Chutkan revokes Trump’s misdemeanor bond, he would have to go to jail until his trial, which is set to begin next March.

Trump was indicted on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021 riot at the US Capitol. It is one of four criminal cases Trump is facing as he campaigns as the front-runner for the GOP presidential nomination. He has also pleaded not guilty to charges in the other cases, denying wrongdoing and repeatedly saying they were part of a political witch hunt. Newsweek sought comment by email Friday from Donald Trump’s lawyer.

Donald Trump speaks at a campaign rally in Claremont, New Hampshire, on Nov. 11, 2023. While reimposing a gag order on the former president on Friday, Dec. 8, a Washington appeals court said Trump criticized the wife of prosecutor Jack Smith during of speech.
JOSEPH PRECIOSO/Getty Images

Rahmani, who prosecuted major federal cases before going into private practice, said he was not surprised the appeals court reinstated the gag order. It was imposed by Chutkan and temporarily suspended by the appeals court until it handed down its decision on Friday.

“Obviously there are First Amendment issues for a presidential candidate, but Trump has overstepped the bounds of free expression, and injunctions are routinely upheld by appeals courts, including the Supreme Court,” Rahmani said.

“I’m surprised that Special Counsel Jack Smith was excluded from the warrant, but the court probably reasoned that Smith was a party and knew what he was getting into when he indicted Trump.” You cannot say the same about the trial judge and other court officials,” Rahmani added.

In a statement, Trump’s presidential campaign said the appeals court overturned “a huge portion of Judge Chutkan’s wildly overbroad order.”

In its written decision, the three-judge appeals court said it had to strike a balance between the administration of justice and Trump’s free speech.

It noted that “the former president also attacked government officials closely involved in the criminal proceedings. He has repeatedly called the judge “biased,” a “fraudster” and a “hacker” and has called prosecutors “crazy,” “thugs” and “lunatics.” He also posted about the special prosecutor’s wife and spoke publicly about her at a rally after our administrative suspension of [gag] order.”

The appeals court ruling narrows Chutkan’s gag order in two ways — Trump can criticize Smith and the witnesses in the case, as long as his criticisms are general and not about their roles in the case.

“[TRUMP’s] appeal involves the confluence of two paramount constitutional interests: the freedom of speech guaranteed by the First Amendment and the federal courts’ vital duty under Article III to ensure the fair and proper administration of justice in criminal cases,” the justices wrote.

They added that the Chutkan court had ensured that Trump’s public comments criticizing Washington, D.C., where the trial is scheduled to take place next March, would not affect his trial.

“The district court first explained that an order restricting Mr. Trump’s speech about the District of Columbia or its residents was not necessary at the time to protect against tainting the jury. Instead, the district court determined that, on the record before it, any such blemish could be addressed by rigorous questioning of potential jurors prior to their trial,” the appeals court wrote.

“We do not grant such an order lightly,” Judge Patricia A. Millet wrote for the appeals court panel. “Mr. Trump is a former president and a current presidential candidate, and there is strong public interest in what he has to say. But Mr. Trump is also an indicted defendant and must be tried in a courtroom under the same procedures that govern all other criminal defendants. It means the rule of law.”

The court sharply criticized Trump’s previous comments about people connected to the case.

“Many of former President Trump’s public statements attacking witnesses, litigants, and judicial officers pose a danger to the integrity of these criminal proceedings,” Judge Millett wrote. “This danger is heightened by the predictable stream of threats of retribution and violence that the district court found follows when Mr. Trump speaks strongly against individuals in connection with this case and the implications of the 2020 election on which it focuses the indictment.”