Opinion | Go ahead, gag Donald Trump

Special counsel Jack Smith recently filed for an extraordinary gag order against Donald Trump. The prosecutor wants to limit Trump’s ability to criticize the criminal case against him for trying to overturn his 2020 election loss. The filing, published Friday, will give Trump more fodder to claim that President Biden’s Justice Department is interfering with the 2024 presidential campaign. That will create more reason, in turn, for Smith to seek harsher sanctions (potentially jail) against the Republican candidate as the trial and election approach.

I think the election interference case against Trump is legally flawed and — to the extent that it is valid — unwise to prosecute in the middle of an election season. The criminal-legal system, with all its punitive strictures, wasn’t designed to function with leading presidential candidates as defendants. And the presidential election system, with all its fierce competition and vituperative debate, wasn’t designed to function with defendants as candidates.

But there’s no going back. Smith’s insistence on indicting Trump over the 2020 election and trying him in the 2024 election year, combined with Republican voters’ insistence on making Trump their party’s presidential front-runner, has set up an inexorable clash between democratic politics and the law. There’s no fine-tuning it, no gentling of the legal and political processes to satisfy both. This is a head-on collision, and one or the other must yield.

I’m tempted to condemn Smith’s request for a gag order as an intrusion on the 2024 election, but that would miss the point. The Justice Department has already decided to thrust itself into the middle of the election. It might as well follow through: Prohibit Trump from attacking the proceedings, and when he doesn’t comply, jail him for contempt mid-campaign. Isn’t that what Attorney General Merrick Garland means when he says “no person is above the law”? Prosecutors have made their bed; they should lie in it.

Smith’s motion, which District Judge Tanya S. Chutkan has to rule on, claims to seek only a “modest” gag order. That’s not true. The prosecutor wants to bar Trump from “disparaging and inflammatory” statements not just about potential witnesses but also about “any party” to the case in United States v. Trump. That seems to include the prosecution and Biden’s Justice Department in general.

In one passage, Smith complains that “the defendant posted a quote alleging, without any basis, that the indictment that a federal grand jury in this case returned had been directed by the sitting president: ‘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.’ ”

“Through such posts,” the motion continues, “the defendant is attempting to submit his false and inflammatory claims to the public and jury pool outside of court.”

This passage is revealing. It shows the breadth of the gag order Smith seeks: He wants to prevent Trump…

Read More: Opinion | Go ahead, gag Donald Trump

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