During Donald Trump’s first impeachment over his attempt to extort Ukraine funding until President Zelensky “found” dirt on Joe Biden, Trump threatened the source of information about the incident. Trump said in a speech that whoever had leaked the information about his discussion with Zelensky was like a spy, and that “in the old days” spies were “dealt with differently.”
Threatening someone who dared to spill was attempted intimidation, plain to see, a pattern Trump continued throughout his term, and after he lost the presidency. Last week, he publicly signaled to a pending key witness in the election interference case, former Chief of Staff Mark Meadows, leading Judge Chutkan to re-impose her gag order.
Until it was stayed again by the Court of appeals, Trump was barred anew from targeting court staff and witnesses, which he claims violates his First Amendment rights. Trump, who prefers to fight his legal battles in the more easily manipulated court of public opinion, called Chutkan’s gag order “another partisan knife stuck in the heart of our Democracy by Crooked Joe Biden, who was granted the right to muzzle his political opponent…” Appellate argument on the gag order is set for Nov. 20.
Special considerations of free speech in judicial proceedings
Courts have long been expected to protect their proceedings from outside interference in order to ensure a fair trial. In 1946, before social media, SCOTUS warned against “trial by newspaper” eroding jurors’ impartiality with an “undertow of extraneous influence.” Although Trump is using his criminal indictments to politically fundraise, with the ultimate legal strategy of pardoning himself (or making the rule of law irrelevant) if he is re-elected, legal trials are not like elections to be won through the use of public media and extraneous statements.
Litigants are often prohibited from making public statements about a pending case because their statements can influence potential jurors. Statements that present a threat, incite violence, or solicit criminal acts are outside the protection of the First Amendment, whether they are connected to a legal proceeding or not. Although Trump has not been charged with inciting the J6 violence at the capital, his “fight like hell, or you’re not going to have a country anymore” speech on the ellipse walked right up to the line of incitement, a line he continually taunts to encourage political violence.
Finally, public speech meant to intimidate witnesses or influence their testimony is not protected by the First Amendment either. Under federal law at 18 U.S. Code § 1512, whoever uses the threat of physical force with intent to influence a witness’ testimony in an official proceeding can be imprisoned up to 20 years. Although threats are conveyed through “speech,” the First Amendment yields here because attempted witness intimidation is attempted obstruction of justice.
Trump’s Mark Meadows post crossed the line
After learning that Meadows was granted immunity in the election interference case, Trump posted:
I don’t think Mark Meadows would lie about the Rigged and Stollen (sic) 2020 Presidential Election merely for getting IMMUNITY [but]… after being hounded like a dog for three years, told you’ll be going to jail for the rest of your life, your money and your family will be forever gone … If you say BAD THINGS about that terrible “MONSTER,” DONALD J. TRUMP, we won’t put you in prison, you can keep your family and your wealth, and, perhaps, if you can make up some really horrible “STUFF” [about] him, we may very well erect a statue of you...
Some people would make that deal, but they are weaklings and cowards, and so bad for the future our Failing Nation. I don’t think that Mark Meadows is one of them, but who really knows?
Trump, who previously referred to Meadows as a “great chief of staff” now fears him, and is hedging his bets. His post simultaneously discredits Meadow’s expected testimony, suggests Meadows will lie, invites Meadows to remain in Trump’s good graces, and disparages witnesses who testify against him as “weaklings, cowards” and enemies of the nation.
Judge Chutkan saw Trump’s post as a clear attempt to influence Meadows while proving the necessity of her gag order in the first place.
Trump’s past statements have led to threats and harassment
Prior to the Meadows post, Judge Chutkan heard undisputed testimony that Trump’s public statements had led to threats and harassment against people, which Trump’s counsel called “totally irrelevant.”
There’s nothing more relevant to a witness than his life, and there’s nothing more important to the administration of justice than witnesses unafraid to speak. Although political speech is the most carefully protected speech under centuries of constitutional interpretation, ultimately, the First Amendment yields because justice under the rule of law is far more important than politics.
Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, and Howey Politics. She and her wife split their time between South Florida and Chicago. Follow her on substack.