Since his indictment last month on charges of withholding classified documents, former president Donald Trump has publicly called special counsel Jack Smith “deranged” and a “psycho” and said he “looks like a crackhead.”
In response, Smith and the federal judge overseeing his pending criminal trial have said … nothing.
The prosecution of Trump, who is the first former president to face federal criminal charges and is also under an unrelated state indictment in New York, presents a test for the criminal justice system: whether it can effectively handle such a high-profile defendant known for daily and sometimes hourly diatribes against his perceived enemies.
Trump’s broadsides on social media against the Justice Department, the FBI, and Smith in particular have not gone unnoticed. The government spent $1.9 million for U.S. Marshals to provide security to Smith and other officials between November 2022 and March, according to officials. Experts and government officials have said individual prosecutors are facing harassment and threats online from members of right-wing extremist groups.
The government doesn’t have to look far for examples in which Trump’s vitriol has led to security problems — the Jan. 6, 2021 riot at the U.S. Capitol is one example, as is the recent arrest of an armed man near former president Barack Obama’s home after Trump posted an address he claimed was Obama’s on social media.
“In some ways, these comments are much more serious than if, say, a typical bank fraud defendant made them, because that person may have 500 followers and it won’t have much of an impact. But Jan. 6 shows his followers can see his posts as a call to action,” said Randall Eliason, a former federal prosecutor who now teaches law at George Washington University. “I think it’s complicated for free speech reasons, but this is getting pretty close to the line.”
Trump has unloaded on Smith repeatedly during speeches and on social media — including after his indictment, after his arraignment and even last week, riffing off an entirely unrelated incident involving a bag of cocaine found in a publicly accessible area of the White House.
But prosecutors have not made any complaints to U.S. District Judge Aileen M. Cannon about Trump’s comments or sought a gag order as they prepare to try the former president on 37 charges of allegedly mishandling classified documents and obstructing government efforts to retrieve them.
“These are the kind of comments that might provoke some judges to issue a gag order,” said Ken White, a former federal prosecutor who practices law in California. He cited the case of longtime Trump confidant Roger Stone, who in 2019 was ordered not to post about his own charges on social media after demonstrating what a federal judge called “middle-school behavior” online that could influence potential jurors.
In the Trump case, White said, there are reasons why Smith and Cannon — who will preside over the first pretrial hearing in the case on Tuesday in Fort Pierce, Fla. — may decide not to raise the issue.
“Trump is likely trying to provoke a legal battle so he can portray himself as a victim of censorship as well as government abuse,” White said. “He wants that to be the narrative, to fundraise and make himself the victim. Smart judges avoid unnecessary fights and don’t want to be trolled.”
Asked to comment on the former president’s remarks about Smith, Trump spokesman Steven Cheung said: ‘President Trump will absolutely continue to exercise his First Amendment right.”
Bruce Rogow, who represented Stone in the 2019 trial, said gag orders are an “extraordinary” step not merited in Trump’s case, especially as he seeks the GOP nomination to return to the White House in 2024. Rogow noted that the justification for a gag order is often to avoid influencing potential jurors, and said he doubted anything Trump can say at this stage in the process is likely to influence those who may soon sit in judgment against him.
“Trump has bought for himself more latitude than other litigants would have. He’s campaigning for office, and the scope of things that are said in campaigns are often far out and unsupported,” Rogow said. “The judge will just have to suffer Trump’s comments and shrug them off and not get engaged in any kind of tussle which would then lead actually to greater publicity for Trump, and Trump would actually thrive on it. I think Trump would welcome a gag order, but I don’t think Judge Cannon would take the bait.”
New York Justice Juan Merchan, who is overseeing Trump’s expected trial next year on state charges related to hush money payments during the 2016 presidential election, also signaled he would not impose a gag order, though he warned he might consider one in the future if there were social media posts that concerned him.
Even if Smith, who was appointed as special counsel by Attorney General Merrick Garland last November, requested a gag order, there’s no guarantee Cannon would issue one. In 2016, prosecutors in the case of former congressman Aaron Schock (R-Ill.) sought a gag order after he and his lawyers made statements highly critical of the government’s conduct. But the federal judge overseeing that corruption case denied the request, saying prosecutors had failed to show a “serious and imminent threat” to the administration of justice.
U.S. District Judge Sue Myerscough concluded that while some of the Schock comments “may come close to creating the appearance that Defendant is trying to influence the actual outcome of the trial or prejudice the jury venire, those comments have not crossed that line.”
Stephen Gillers, a professor of legal ethics at New York University, said that the calculus for a gag order could change if Trump starts talking about witnesses or evidence — particularly any evidence that has been ruled inadmissible at trial.
“What the courts are mainly concerned about, and the prosecution would be concerned about, is if Trump were to make factual statements, whether or not true, that could influence the jury’s verdict — but that’s not what he’s doing here,” Gillers said. “He’s attacking the prosecutor in rather harsh terms but he’s not revealing information that would be excluded from trial.”