Thread by @rparloff

I'm at E. Barrett Prettyman US Courthouse this morning. Plan is to live-tweet for @lawfare the 10:00am hearing in USA v Trump (DC) over govt's request to impose gag order on Trump. Key language of order govt seeks is below.
/1

Judge asks Molly Gaston how its proposed order differs from existing conditions of release.
Asst Sp Counsel Molly Gaston: 2 sources of prejudices govt seeks to prevent.
1. derogatory inflammatory intimidating statements attacking witnesses. not covered by 1512 but risk
/26

both witness and other witnesses that see that attack.
2. trial of case in public. ... false renditions of evidence, attacks on witness credibility. ...
Judge: "intimidating statements"--set aside for a minute subjects of statements. how do you define disaparaging & intimidating?

Gaston: the dictionary definitions. [she recites some of those.]
it's the combination of these things ... there could be fair ways to disparage somebody--
Judge: you use the word 'fair' and that concerns me. asking court to get involved for very wide variety of statements
/28

Gaston: the standard here is this is limited to witnesses at this trial, statements intended to influence trial. article in Washington Post by trump's spokesman: his intent is to try this case in court of public opinion.
exactly what should not happen.
our proposed order ... /29

narrowly tailored to accomplish that purpose. we're not wedded to these exact words. we know this is hard. but answer cannot be that defendant is permitted to intentionally try this case in court of public opinion and influence jury venire. [i.e., pool]
/30

Judge: what about attempts to publicly praise a witness?
Gaston: that's what we were trying to get at in paragraph 1(a)--bolstering a witness for instance is covered.
Judge: order has carveout for judge to announce w/o more that defendant denies charges. That's it?
/31

Gaston: it would allow defendant to campaign. he could say no i didn't do crimes & i acted appropriately.
Judge: you're envisioning a different situation than currently exists.
Trump atty Lauro: we're in a campaign, dealing with content-based political speech. biden adm is
/32

attempting to silence his primary opponent.
Judge: let me stop you there. mr. trump is a criminal defendant and he's [subject to rules everyone else is]
Lauro: ...everyone's complying ...
Judge: (skeptical): everyone's complying?
Lauro: ... here's these prosecutors want

/33

to prevent president trump from speaking out on issues of the day. the role of prosecutors, appointment of judges, all have political implications.
Judge: want to make sure i'm clear on this recurrent theme. fact he's running for president--entitles him to make
/34

statements that are otherwise unlawful? he can make threats?
Lauro: of course not. and he hasn't made threats.
Judge: he has restraints on his speech. do you disagree that those override his 1st amendmetn rights & campaign? he subject to conditions of release.
/35

Lauro: what we object to is Biden Adm attempt to censor his political opponent. Mr. Trump is entitled to speak truth to oppression. he's entitled to criticize these prosecutors. here we have situation where Biden Adm--
Judge: i know you have a message you want to get out

/36

judge: i dont want to hear campaign rhetoric.
Lauro: it's not campaign rhetoric ...thse prosecutors decided to bring this case in middle of a campaign. chose to have it inextricably intertwined with a political campaign. ... trump entitled to say these proceedings are unfair
/37

he's abided by your orders.
Judge: well, i'm going to take issue with that ...
Lauro: ... prosecutors haven't presented any evidence of jury [taint]. easiest thing to do is put trial off till after election. wouldn't have rush to judgment.
that's way to deal with it.
/38

Judge: this trial will not yield to the election cycle. [very adamantly expressed]
Judge: Ms. Gaston, want to ask how this would work. say i enter this order and Mr. Trump violates restriction ... what happens next? revocation of supervised release? home detention? contempt?
/39

Judge: how does it work.
Gaston: all of options you mentioned are available to court. could admonish; pursue financial penalties. could, like in Stone case, modify conditions of release.
Judge: procedural posture? Order to show cause? sua sponte find a violation?

/40

Gaston: any of those. but that's a hypothetical. suggest we first get in place an order.
Judge: Mr. Lauro, assuming i issued order, what would be proper procedural posture for a violation.
Lauro: it's asymmetrical. it doesn't bar Joe biden from making statements--
/41

Judge: joe biden is not a party before this court.
Lauro: how to enforce? it's impossible. its unfathomable. say he wants to criticize VP Pence. says something disparaging. ...
Judge: were there an order, what's procedural posture governing enforcement
/41

Lauro: impossible. can't conceive it. and obviously we'd appeal it. ... ridiculous to think of order preeventing candidate from speaking out on these issues. no limits to kind of order being suggested. not narrowly tailored. vague. overbreadth. can't come up with better ...
/42

[template] for violating the 1st Amendment than prosecutors have come up with in this case.
there's been no threats, nothing that amounts to intimidation. what you've put in place is working frankly.
Judge: laughs out loud. ... Politics stops at this courthouse door ...

/43

L: one other thing ... the harm being suggested by prosecution--or by the Biden Adm--is completely speculative. no data.
Judge: govt filed redacted info from people involved who attested to what happened to them. that's not sufficient?
L: of course not. that predated this case/44

... and [trump's not responsible for what some crazed third-party does]
Judge: my concern: jury pool; biden adminstration & DOJ; Special Counsel staff; judge's staff; political witnesses.
1. Not discussing this Trump's statement
/46

Judge: calling DC a filthy crime ridden embarrassment disparages jury pool ... let's assume these statements have affected pool ... why can't these issues be addressed through careful jury selection, Ms. Gaston.
Gaston: [Sheppard teaches ... need to do more] ...
/2

Judge: Mr. Lauro, do you disagree that mr trump's statements could be understood as disaparging to DC?
Lauro: he's disparaging the biden administration--
Judge: that's not what he said. he called District a filthy crime ridden embarrassment --
Lauro: i served in DC --
/3

Judge: -- before it became filthy crime-ridden embarrassment?
[laughter]
Lauro: mr. trump is entitled to speak out ... draw attention to deep problems in this city that need to be addressed but haven't been addressed by biden adm.
/4

L: plus, these statements, if they had any effect-- jurors would likely be biased against trump not for him. ... isn't that the problem with censorship?
Judge: you keep saying censorship. no question that court is entitled to impose limits on defendant's speech
/5

Judge: we're talking about restrictions to ensure [fair trial]
Lauro: it's censorship. would you rather i call it a gag order? ... it's speech during a political campaign.
Judge: if i enter order, he can say Biden Adm has neglected the city. that's different from saying it's
/6

filthy crime ridden embarrassment
L: so now we're going to have judge directed the words a candidate can use
Judge: not difficult or impossible task
L: candidate cannot say DC is crime-ridden & infested with rats even tho we know that's true. everyone living in city knows
/7

what's happened in recent years.
Gaston: what Lauro is saying is that defendant is above the law, not subject to rules of court like any other def.
He says def can't campaign. that's just not true. this order would prevent him from using campaign to broadcast materially
/8

improper statements about this case. the post you just quoted was attacking the jury pool in this case. it explicitly say it's about this trial
Judge: i want to get through all 5 categories. let me ask you about statements about Biden Adm and DOJ. have some concerns
/9

Judge: Mr. Trump repeatedly refers to president as 'crooked Joe Biden' and 'Dept of Injustice.' but wouldn't that be casting a broad net ... how would name-calling affect administration of justice.
Gaston: first part, criticizing Biden is example how this order doesn't
/10

restrict the order.
Judge: does "crooked joe biden" violate the order?
Gaston: he does that every day.
Judge: so it does not violate?
G: no.
Judge: what about Dept of Injustice?
G: does present a concern that juror will think DOJ is Injustice ...
/11

G: our concern is not to defend ourselves or the court. it's concern juror will come to jury selection & not be able to follow court's instructions because of having read these things. Sheppard stands for principle we can't just let this happen up until time of voir dire.
/12

Judge: crooked joe biden is not violation but dept of injustice would?
Gaston: he can criticize biden to his heart's content.
Judge: Mr. Trump believes his prosecution is politically motivated. but how does that prejudice this proceeding? Seems close to his right to assert
/13

innocence and [criticize govt's use of power] which [court in Gentile says lie close to heart of 1st amendment.]
Gaston: solution is for Trump to file vindictive / selective prosecution motion he has said he wants to file
Judge: how does his criticism of Biden/DOJ factor in
/14

if I enter this order?
Gaston: the crooked joe biden thing--he's not a participant in this case. def can say that.
Lauro: what if trump says crooked joe biden approved this prosecution which i believe is politically motivated to interfere with election?
/15

Gaston: yes, your honor, that violates order. falsely suggesting biden directed this prosecution which he did not.
Judge: problem is ... argument to be made DOJ is under control of exec branch. it's part of a campaign. ... that violates gag order?
/16 [sorry screwed up #s]

Gaston: by the plain language of the order it would not violate because joe biden is not party, participant, court personnel.
Lauro: they have to read their own papers before tehy respond to the court. what if Trump says Hunter Biden is allowed to sue witnesses & allowed
/17

to talk and I'm not. we're just trying to struggle with circumstances of what's being proposed here. i'm thinking george orwell would have field day with what we're hearing from these prosecutors.
Judge: 3d category: Special Counsel & his staff ... "deranged" jack smith ...
/18

... refers to his staff as "thugs." these statements are troubling. at some point it goes from permissible criticism to [incitement of violence]
"will no one rid me of this meddlesome priest" comes to mind.
public servants doing their job -- not just derogatory labels ...
/19

... but highly charged language.
Lauro. Congressman Ford called his prosecutors "racists" and 6th Circuit upheld that.
Trump is being bullied. [i think he said jack smith is deranged.] he made outrageous statements at time of indictment linking trump to violence ...
/20

Judge: in what kind of case is it appropriate for criminal defendant to call prosecutor a 'thug' and stay on the streets.
L: whether it's language i would use--
J: i'm asking in normal prosecution would def be allowed to call prosecutor a thug?
L: this is not a normal case
/21

L: this is prosecution un precedented, using statutes in all sorts of crazy ways to take trump out of a political cycle. asking for order not just affecting trump but public that wants to hear from trump. 1st time we've had sitting adm prosecute a political opponent.
/22

Judge: i've heard you say that. you obviously have an audience other than me. i want you to answer my question. why do you need to use word "thug" to describe someone doing their job that wouldn't be allowed with any other def. how is word 'thug' justified?
/23

it risks a real possibility of violence.
L: it certainly doesn't do that. what language do you use in a system that's now bordering on authoritarianism. ... what is a citizen supposed to say when denied due process? in Pres. Trump's mind that's what he's facing right now.
/24

Judge: Trump tweeted last night. he's in iowa today campaigning. please mr. lauro let's tone this done a bit.
L: it's toned down. as an advocate i'm entitled to make args on my client but if your honor wants to censor my speech too-- the word trump chose may not be word you

/25

like but he's entitled to make that statement under these circumstances.
Judge: he's targeted S/C Smith's family and wife.
L: wasn't attack on family member. indication might be political bias.
J: by mentioning their spouse?
L: deals with political issues relating to Smith
/26

no order in place preventing him from saying this is politically biased prosecution by politically biased prosecutor.
J: what do you feel it appropriate for him to talk about prosecutor's family & spouse. you telling me that's appropriate & should be allowed?
/27

L: he's entitled under 1st am to describe --
J: in unfettered terms, even if it means mentioning prosecutor's family?
L: it becomes part and parcel of 1st amendment. part of reality of being involved in case of this nature. ...
/28

Asst S/C Gaston: i think you identified why govt paired "disparaging" with "inflammatory" in the order. what def doing is inflammatory. he understands impact -- they motivate others to threaten others. in case of witnesses it threatens & chills witnesses. ...
/29

... in 9/17 meet the press interview, def said false things about one of witnesses in this case. also declined to answer certain things. declined to answer questions about his conduct on J6. he's able to control himself. he's using campaign to try this case in ct of public..
/30

... opinion.
Judge: now turning to statements about court. ... [mentions this one]. i was deeply disturbed to learn Mr. Trump made post about another judge's clerk, called her Schumer's girlfriend, said she was running case against me ... Mr L, do you think that's acceptable?

L: that is something i believe judge in NY dealt with--
J: not asking that ...
L: i'd advise Mr. Trump not to do that.
J: would it be appropriate to do that?
L: what i'd tell my client not to do that
J: why?
L: because that's not how in middle of campaign--i mean case--

/30?

... it was addressed by that judge. but yes judges are subject to criticism. well within core of 1st amendment.
J: why shouldn't i issue similar order as Judge Engoron did in that case. disparaging & obviously untrue remarks about court personnel even after he was on notice
/31

... that govt was seeking order [limiting extrajudicial statements] in this case.
L: no need for order. if your honor makes that admonition he'll follow it. I will instruct my client along what you've just suggested. court dealt with it in NY. not an issue here.
/32

L: you've had full control over this court. you've been able to issue orders that have been obeyed & followed. The sheppard case--nothing like that going on here. your honor is in control.
Gaston: mr. L suggests nothing like what happened in NY has happened here. not true.
/33

Gaston: this court has been the subject of a criminal threat in relation to this case. happy to have L admonish his client but need order to expand that ... need order expressing clearly on record what court's order--not expectation--is.
/34

Judge now discussing statements about witnesses.
Mentioning posts about Pence and Barr including this one
/35

Now mentioning this posts about Mark Milley

/36

Now mentioning statements about Brad Raffensperger.
Judge: let's start with witnesses who are identified but who are public figures. i take your point, impossible for Trump not to criticize Pence, who's running. but none of others fit that description.

/37

Judge: what about other witnesses who aren't running
L: govt had opportunity to get affidavits from Milley, Raffensperger, Barr.
J: why should they have to.
L: all of those men have publicly criticized president trump. give as good as the get.
/38

J: really? Milley suggested Trump should be executed?
L: well ... [now he's criticizing Milley's conduct and saying Trump had reason to criticize him.]
J: punishable by death?
L: what he did say was that sort of conduct by head of joint chiefs of staff going around
/39

civilian leadership and speaking to China--
J: why appropriate to suggest appropriate punishment is death. writing in all caps: DEATH. doesn't that go too far?
L: still true death penalty for treason -- factually true. not inciting.
/40

J: that's right up to 'will no one rid me of this meddlesome priest.' millions of followers ... one of them may act on it.
L: you hit nail on head. ... someone took shot at Rep. Scalise. are we going to say political figures can't give speeches? we're in the zone of clear
/41

1st amendment political speech even tho there's criminal prosecutions going on. under brandenburg standard it doesn't 'incite.'
Gaston: we both know post about Milley was a threat. threat to him and to all witnesses. if you come after def he would come after you. ...
/42

[Gaston starts to defend Milley's actions. judge cuts her off ... that's none of our concern]
Judge: what's response to L's criticism that you didn't provide affidavits from Barr or Milley etc
Gaston: of course prejudice is speculative. ... may be chilled in ways we don't know/43

Gaston: the post about Raffensperger misstated what he said & it was about exact topic he'd be expected to testify to.
Judge: because it concerns subject matter of expected testimony that govt cannot respond to. that testimony should happen in this courtroom ...
/44

... not out in public.
[Judge continues:] Trump is not campaigning against Barr or Raffensperger or Gen Milley. why should he be making public statements about them at all. he's facing felony charges. doesn't get to respond to every statement about him by a witness.
/45

Lauro: with respect to Barr, president entitled to describe what he'd like in an AG. compare what Barr did with what an AG he'd like would do.
Judge: no one has said he can't campaign or respond to criticism. what we're talking about is the language he's using.

/46

can't use words that can be interpreted as threats or attempts to intimidate.
L: it's obvious that none of these are threats.
J: i don't think that's obvious
L: Pres Trump uses forceful language. that's what he's done since [2015]. he's entitled to say things critical

/47

of people in the public officials in the political sphere. if anything this district is biased against the [ex-]president [as a result of J6 hearings etc.]
we're going to be litigating ad infinitum all these issues instead of the case. we should be preparing for trial ...
/48

... instead of these angels on a pin discussion. one simple solution: let's have this trial after the election and solve the problem.
Judge: when Trump has singled out certain people in past, hasn't that led to them being threatened and harassed?
L: that's totally irrelevant
/49

J: these were people who were doing their jobs. ... several people who filed affidavits said statements threatening them had increased preciptiously.
L: those peopple are public officials ---
J: election poll workers?
L: no suggestion Trump has ever done anything that amounts
/50

... to a threat or incitement. people just can't control what other people are going to do. ... otherwise 1st amendment will be excised out of the constitution. have to tolerate a bit of colorful vituperative speech.
J: have to tolerate suggestions of violence?
/51

Gaston: Mr. Lauro saying his client is above the law. he can say whatever he wants *about this case.* the statements about Milley, Barr, Raffensperger were about this case. not campaigning. trying to pollute jury pool. court has obligation to stop it.
/52

Judge: let me give you some hypos, Mr. Lauro.
"Bill Barr should be executed for his many treasonous acts?" is that lawful under conditions of release & permissible?
L: i'd advise anyone not to make statements like that--
J: why?
L: i personally as officer of court --

/53

J: why?
L: i don't personally think statements like that need to be made in context of court proceeding.
J: hypo: "I hope bill barr stays loyal to me or he won't have a place in my next administration" would that be permissible? or an attempt to influence testimony?
/54

L: here's it's political statement because it's about trying to get his support in the campaign.
J: next hypo: Bill Barr is smart guy but better learn to keep his mouth shut?
L: depends on context. if it related to him barr arguing trump and calling him out--fair comment.

/55

L: but if it was day before trial it would be different hypo.
Judge: "bill barr is slimy liar and can't be trusted" permissible?
L: i'm not going to say [truth is a defense] but ... president trump is allowed to comment on barr's activity as AG. bill barr's a tough guy.
/56

L: these are tough edged political people. bill barr, mike pence, milley, raffensperger. used to rough and tumble. they signed up for it. they're all monetizing their relationship. do you think anything trump said prevented them from writing their books
/57

L: if your honor wants to have me show president trump what your expectations are i'm happy to show it to him.
asst SC Gaston: i will run through your examples.
about barr being executed--def should not be able to do that. intimidating & threatening toward known witness

/58

could chill his testimony & those of others watching.
'i hope he stays loyal' is intimidating. impinges on content of testimony at trial. potentially violatino of conditions of release.
'smart guy but needs to keep mouth shut': intimidating

/59

'slimy lawyer can't be trusted'--goes to credibility and potential topics of his testimony. all these statements would cause these individuals to respond in kind. that involves details of testimony being out in public outside trial. govt doesn't respond. ...
/60

... these statements chill others. what about other witnesses who don't live on military base & have constant protection.
Mr. Lauro wants you to just tell him and he related it to Trump so it won't be enforceable. [we need enforceable order.
/61

Judge: address universe of prospective witnesses.
Gaston: witnesses whom def has publicly attacked are all identifiable in the indictment. he knows they're witnesses. in conditions of release there's requirement he not contact witnesses. on notice based on discovery
/62

govt has provided.
L: courts have recognized that parties to lawsuit involved in poltiical campaign are to be treated differently. courts recognized that it Ford and Brown cases. bill barr is not prevented from speaking out--
J: bill barr not a criminal defendant.
/63

L: court will be regulating campaign speech. no court has ever done that. this would be first time. you've asked pointed hypotheticals. but it's not a law school questions. what if he says something on campaign, are we going to be back here in a contempt hearing?
/64

J: we're in here because he keeps calling prosecutors 'thugs' 'deranged' he's made comments about court staff and about death penalty for a potential witness. he's made such statements right up to *last night.*
L: everything he's said is 1st Am protected speech. ..
/65

Gaston: 1st of all, the Ford case: court entered what 6th circuit called a broad order and court did it sua sponte. not analogous.
with respect to Brown case: that's a cautionary tale. the court lifted an order restricting def's extrajudicial statement. soon thereafter

/66

defendant started leaking testimony and exhibits ... and a new order had to be entered. and that was 2 months before an election. we're [much further out].
Judge: thank you. i'm going to take a brief recess. ... [she leaves] ...
/67

[sounds like she may issue her ruling when she gets back.]

/68

Judge Chutkan back on bench.

/69

Judge: after this hearing concludes i will issue an order setting forth my decision in greater detail.
now sharing [gist of it]
i am going to grant in part & deny in part motion to restrict out of court statements.
defendant has sought to represent every statement ...

/70

... as part & parcel of his argument that Administration is prosecuting an opponent protected by 1st amendment.
but there is right to restrict language that threatens administration of justice.
won't impose limit on statements about DC ... will consider that in jury selecti/71

won't restrict statements on Biden Adm or DOJ.
i will however prohibit all parties from making or reposting statements public targeting Special Counsel, his staff; my staff; court personnel. statements targeting family of these people also prohibited as well.
/72

can't call prosecutors 'deranged' or 'thugs'
can't villify or incite violence against public officials.
also going to [bar] statements about witnesses or substance of expected testimony. ... there is real risk witnesses may be intimidated ... other witnesses may be
/73

... reluctant to go forward.
trump can assert his belief that this prosecution is politically motivated. but can't launch smear campaign against participants in this case ... no other criminal def can do that. he can't either.

/74

... if a participant violates this order i'll entertain motions by parties or sua sponte to consider sanctions.
Court is adjourned!
[In sum: Trump can talk about rat-infested DC, crooked Joe Biden, Dept of Injustice. ... But he can't ...
/75

... But he can't attack Special Counsel, his staff, the court, the court's staff and "it should go without saying" their families. Finally, he can't discuss or attack expected witnesses or characterize their expected testimony. ...
/76

... She did not mention what sanctions she'd imposed in case of violation, except to say she'd entertain motions for sanctions.
Thank for following. Hope to see you again soon.
/77-end