Davis: Jack Smith’s Gag Order Request Is Unconstitutional And Un-American


Biden Special Counsel Jack Smith’s election interference continues. Smith indicted former President Donald Trump last month in an overly broad and ridiculous case that criminalized the constitutional and legal right to challenge the results of an election.

But the indictment hasn’t had its intended effect. President Trump’s poll numbers in the primary have gotten stronger, and he is now leading Joe Biden in the RealClearPolitics polling average. 

In fact, since the indictment, there has been a 1.5 percent swing in President Trump’s favor in polling against Biden. It didn’t work, so now the Biden Justice Department is trying to muzzle Biden’s leading political opponent.  

In Smith’s latest desperate move, he has now turned to requesting a gag order of President Trump in a filing that cites Trump’s criticism of Jack Smith, DC Obama Judge Tanya Chutkan, presidential campaign rivals like former Vice President Mike Pence, and even Trump-deranged DC residents who voted against Trump, 95-5%.

Jack Smith’s proposed gag order is unconstitutional. A criminal defendant—more than anyone—must have the First Amendment right to criticize a prosecutor, judge, and process, especially when he believes he’s the subject of an unjust political prosecution.

It’s worth going through the examples of the comments Jack Smith thinks President Trump should be barred from making.

One of the those cited in the motion is President Trump saying that the “justice system is ‘rigged’ against him” and that “he cannot get a fair trial from the residents of this ‘filthy and crime ridden’ District that ‘is over 95% anti-Trump.’” Every single comment made by President Trump is true.

Smith then takes issue with President Trump, writing that Chutkan–who previously bemoaned the fact that Trump isn’t in prison and downplayed the violent 2020 BLM riots–is a “biased, Trump-hating” judge.

President Trump is apparently not even allowed to criticize his chief political opponent, Joe Biden. The special counsel’s office criticizes Trump for writing on Truth Social that “Joe Biden directed his Attorney General to prosecute his rival. This is not an independent Justice Department, this is not an independent special counsel. This is being directed by the Commander-in-Chief.”

Jack Smith wants to ban constitutionally protected political speech. Maybe we should hope Obama DC Judge Tanya Chutkan is partisan enough to order Jack Smith’s proposed gag order on Trump. It will give Trump another political bump, while putting a halt to these partisan criminal proceedings until appellate courts sort out this unconstitutional mess.

In fact, there is precedent for an appellate court lifting a gag order on a politician. In 1987, Democrat Tennessee U.S. House Representative Harold Ford, Sr. was put under a gag order while facing bribery charges. The U.S. Court of Appeals for the Sixth Circuit lifted the gag order in a ruling that found that it was a violation of Congressman Ford’s First Amendment rights.

“Here the defendant, a Democrat, a black congressman who represents a largely black constituency in Memphis, is entitled to attack the alleged political motives of the Republican administration which he claims is persecuting him because of his political views and his race,” the court wrote. “One may strongly disagree with the political view he expresses but have no doubt that he has the right to express his outrage. He is entitled to fight the obvious damage to his political reputation in the press and in the court of public opinion, as well as in the courtroom and on the floor of Congress.”

The ruling went on to note that Congressman Ford should have a right to respond as his political opponents will be attacking him as a “indicted felon” during his upcoming reelection and that Congressman Ford “will be unable to respond in kind if the District Court’s order remains in place.”

Does this sound familiar? The main argument that Joe Biden and several of President Trump’s primary opponents have against President Trump is that he is facing multiple indictments.

Jack Smith’s unconstitutional demand would bar President Trump from making effective and true arguments against his political persecution. 

Mike Davis is the founder and president of the Article III Project (A3P), which defends constitutionalist judges. As the former chief counsel for nominations to Senate Judiciary Chairman Chuck Grassley, he served as the staff leader for Justice Kavanaugh’s confirmation.