Special Counsel Jack Smith’s request that Judge Tanya Chutkan, who is overseeing his January 6 case, impose a gag order on President Trump brings into focus a prosecutor well attuned to the effect the court of public opinion can exert within the court and jury rooms. 

The motion, unsealed on Friday evening and festooned with screenshots of the former president’s Truth Social account, seeks what it calls a “narrowly tailored” order. That edict would restrict Mr. Trump from discussing any witnesses in the case, and bar him from making “disparaging and inflammatory, or intimidating” comments about anyone involved in the case. 

Mr. Smith writes that Mr. Trump “has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the court, prosecutors and prospective witnesses.” The former president has publicly fulminated against both Mr. Smith and Judge Chutkan.

Judge Chutkan, who could also rule on Mr. Trump’s request that she recuse herself from the case, will have to weigh Mr. Smith’s motion to silence Mr. Trump’s “extrajudicial statements that present a serious and substantial danger of materially prejudicing this case” with the freedom the defendant is constitutionally owed. 

Telegraphing such an argument, Mr. Trump on Friday night posted to Truth Social: “They Leak, Lie, & Sue, & they won’t allow me to SPEAK?” At an earlier hearing, Judge Chutkan warned that “Mr. Trump, like every American, has a First Amendment right to free speech, but that right is not absolute.” She warned Mr. Trump to “take special care in your public statements in this case.”

Now comes Mr. Smith to persuade the judge that Mr. Trump’s behavior threatens to “undermine confidence in the criminal justice system and prejudice the jury pool through disparaging and inflammatory attacks on the citizens of this District, the Court, prosecutors, and prospective witnesses.” The prosecutor discerns a “substantial likelihood of material prejudice” stemming from Mr. Trump’s pronouncements.   

Mr. Smith comes close to offering a unified theory of Mr. Trump’s behavior, alleging that the former president is “now attempting to do the same thing in this criminal case” that he did with respect to the 2020 vote, where “in service of his criminal conspiracies, through false public statements, the defendant sought to erode public faith in the administration of the election.”

The government tells Judge Chutkan that Mr. Trump, the frontrunner for the 2024 Republican nomination for president, has “an established practice of issuing inflammatory public statements targeted at individuals or institutions that present an obstacle or challenge to him.” Mr. Smith asserts that Mr. Trump “knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets.”

The motion relates the observation of a Georgia election official, Gabriel Sterling — the names are redacted in the document filed with the court — that if Mr. Trump did not cease contesting the election results, “Someone’s going to get hurt, someone’s going to get shot, someone’s going to get killed.” Mr. Smith writes that Mr. Trump “did not stop. Instead, he continued.”

Mr. Smith homes in on a message Mr. Trump unveiled the day before his arraignment, when he posted, “If you go after me, I’m coming after you.” The special counsel reckons that Mr. Trump “has made good on his threat” with statements “intended to undermine public confidence in an institution — the judicial system — and to undermine confidence in and intimidate individuals — the Court, the jury pool, witnesses, and prosecutors.” 

The motion cites Mr. Trump’s observation that Judge Chutkan is “a fraud dressed up as a judge in Washington, D.C. who is a radical Obama hack” and a “biased, Trump-hating judge” who presides in a “filthy and crime ridden” district. The former president also called Mr. Smith’s office a “team of thugs.” Mr. Smith reasons that “to the extent that Mr. Trump’s “public posts reach the general public, they also reach the jury pool for this trial. “

While the Supreme Court has warned against letting parties in a criminal case contribute to “a carnival atmosphere of unchecked publicity and trial by media rather than our constitutionally established system of trial by impartial jury,” it has also held that there is a strong presumption against the constitutionality of gag orders, as there is against all prior restraint on speech.

A local rule, though, in Judge Chutkan’s district allows a judge to regulate the extrajudicial statements of all participants in a “widely publicized or sensational criminal case.”