Davis: The Latest In Lawfare: Jack Smith and Judge Chutkan’s Gag Order Against President Trump


Biden Special Counsel Jack Smith and DC Obama Judge Tanya Chutkan’s gag order against President Donald Trump means Joe Biden’s chief political opponent has to campaign with one hand tied behind his back.

This gag order is a blatant and unacceptable assault on Trump’s constitutional rights. Thankfully, Trump is immediately appealing. The DC Circuit or Supreme Court must fix this immediately.

Defenders of this unprecedented gag order against a former president and leading presidential candidate say it allows Trump to continue to criticize the administration “generally” and claim that the prosecution is politically motivated.

This is nonsense. When we step back into reality, we see Trump is “prohibited from making any public statements, or directing others to make any public statements, that target . . . the Special Counsel prosecuting this case or his staff.”

This order is an illegal prior restraint on speech. It is both overly broad and vague. It is a sword of damocles over Trump’s head, held by a deranged prosecutor and a highly partisan judge. And it even purports to apply to those who Jack Smith deem a surrogate of Trump. Maybe I’ll be put in jail for writing this very piece. Fortunately, I won’t be cowed–and I’ll go to jail before I let them attempt to silence me.

Judge Chutkan’s order constrains the ability of Trump to campaign effectively. Jack Smith is a central player in the ongoing lawfare against Trump and the Republican Party, just like he was when the Supreme Court unanimously reversed him when he brought a bogus criminal case against Virginia Governor Bob McConnell–a likely 2016 presidential or vice presidential contender. Trump and his campaign need to be able to expose the background and political motivations of Smith and his highly political team.

Multiple members of Jack Smith’s legal team, for example, are Democrat donors. 

Two prosecutors on his team even donated to Biden’s 2020 campaign. One of those prosecutors, David Rody, gave $5,000 to Biden in 2020. The other Biden donor is Karen Gilbert, who has a “checkered past,” according to the New York Post. Gilbert was “forced to resign as chief of the narcotics section of the Miami U.S. Attorney’s office for her role in secretly taping a defense lawyer in 2009.”

Smith himself has a starkly partisan background that Trump and his campaign should be allowed to highlight. For starters, Smith’s wife is a Biden donor and produced a pro-Obama documentary. Democrats attack Justice Clarence Thomas for his wife Ginni’s political activities, so Katy Chevigny must be fair game.

As the Biden Attorney General’s hand-picked special counsel, Smith also has a history of targeting Republicans. He was deeply involved in the Lois Lerner IRS scandal that targeted conservative non-profits. Smith was deposed in 2014 during a congressional investigation and according to Congressman Jim Jordan, “Jack Smith was looking for ways to prosecute the innocent Americans that Lois Lerner targeted during the IRS scandal.” 

These are all crucial bits of information that the public deserves to know. Trump and his campaign have the right to educate voters on the man who is trying to imprison the likely Republican nominee and next President of the United States. Not only does this interfere with Trump’s political speech, it’s clearly unconstitutional to bar a criminal defendant from publicly criticizing the prosecutor or a politician from criticizing his political adversaries.

The First Amendment right to free speech protects the defendant—not the government. The Sixth Amendment right to a fair trial protects the defendant—not the government. A gag order protects the defendant—not the government.

A criminal defendant–more than anyone–must have the right to criticize the prosecutor, judge, and process. It is unacceptable–and un-American–to rule otherwise. Silencing criminal defendants happens in third-world Marxists hellholes, and New York, DC, and Atlanta are well on their way.

If a criminal defendant illegally intimidates witnesses, the prosecutor, or the judge, then he can be charged with obstruction of justice. Deranged Biden special counsel Jack Smith and highly partisan Obama DC Judge Tanya Chutkan know this isn’t happening. They know their gag order is political. The D.C. Circuit must fix Jack Smith and Judge Chutkan’s erroneous, illegal, and unconstitutional gag order. Otherwise, the Supreme Court must end this Republic-ending tactic. This is so much bigger than Trump. Let’s hope the justices, with their lifetime tenure and pay protection, find their backbones and do their jobs.

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.