Trump Lawyers Howl About Proposed Gag Order, Even As Their Client Demands Death For Potential Witness

(Photo by Win McNamee/Getty Images)

Donald Trump’s lawyer John Lauro is a very funny guy.

His response to a narrow protective order proposed by prosecutors in the DC election interference case is 25 pages of high-decibel histrionics worthy of an Emmy — although perhaps of the Daytime variety. The Florida attorney is also bigly mad that prosecutors pointed out that his whirlwind media blitz appears to have violated Local Criminal Rule 57.7(b), which prohibits attorneys from making public proclamations on “the identity, testimony, or credibility of prospective witnesses” and the “merits of the case or the evidence in the case.”

“Baseless efforts to tarnish the reputation of counsel who has practiced before this Court for 40 years should be condemned rather than entertained,” he fumes, before calling the local rule unconstitutional.

The filing itself is largely unresponsive to the government’s concerns about Trump’s habit of siccing his followers on his critics — a particularly clanging irony in a case involving Trump sending a mob to attack the Capitol. Instead Lauro and his co-counsel Todd Blanche divide their time between screaming WITCH HUNT and applying a traditional First Amendment strict scrutiny analysis to gag orders, while studiously disregarding the robust line of cases finding them appropriate in limited circumstances.

What the hell does the Brandenburg standard for incitement have to do with a protective order in a criminal prosecution? And while Prof. Erwin Chemerinsky is a lion of the field, even he understood that his 1997 law review article on the unconstitutionality of gag orders expressed his own opinion, not the state of the law then or since. And yet both of these are cited in support of the proposition that any order restricting Trump from attacking witnesses, jurors, prosecutors, and even the judge would be a gross assault on the First Amendment.

“Keenly aware that it is losing that race for 2024, the prosecution seeks to unconstitutionally silence President Trump’s (but not President Biden’s) political speech on pain of contempt,” Lauro fulminates, accusing prosecutors of “preventing President Trump from defending himself in the political arena, while giving President Biden and his surrogates (including those in the corporate media) free reign [sic] to say whatever they want.”

Lauro failed to explain how the court was responsible for policing the conduct of non-parties to the case, much less their supposed media “surrogates.” Presumably he was too busy picking chunks of furniture out from between his teeth.

“The prosecution and its media allies represent a far greater threat of prejudice to the venire than anything President Trump has or will say—particularly, in the District of Columbia,” he continues, pointing to “the misleading allegations in the 45-page speaking Indictment [which] sought to skew public opinion against President Trump in this historic case” and the understated three-minute press conference Smith made in August announcing the indictment.

“President Trump has never called for any improper or unlawful action,” Lauro insists, despite his client’s social media post on Friday demanding death for Gen. Mark Milley, who testified before the grand jury and may well be a witness in this case. Lauro brushes off Trump’s calling his former vice president Mike Pence “delusional” as a legitimate attack on a political opponent. He does not engage at all with the prosecution’s accusations that Trump has exceeded the bounds of criticizing the prosecutors by telling absolute lies about the case, such as accusing the government of “secretly attacking” his Twitter account in a “major ‘hit’ on my civil rights.” In fact, prosecutors sought and were granted a warrant by then Chief Judge Beryl Howell.

But the client’s conduct and the attorneys’ are not so far apart here. Not only does Lauro blatantly mischaracterize the government’s narrow protective request as a blanket gag order, but he claims that “this very Motion came on the heels of adverse polling for President Biden.” In fact, this motion originally came on September 5, but was removed from the docket at the defendant’s request after theatrical howls about the government’s failure to meet its conferral obligations. The attempt to connect it to recent polling is perhaps less than entirely candid.

In short, you can’t read this as a real legal document. This is a political screed vomited onto the federal docket to please a cantankerous client and to give right-wing media something to scream about when Judge Chutkan comes out with a narrow order telling Trump to stop shit-talking the witnesses in this case.

Always be hustling!

US v. Trump [DDC Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.