Here is the column:<\/p>\n Ronald Reagan once said,\u00a0\u201cThe nine most terrifying words in the English language are: I\u2019m from the Government, and I\u2019m here to help.\u201d<\/strong><\/em><\/p>\n After Friday night, we can add nine more:\u00a0\u201ca narrowly tailored order that imposes modest, permissible restrictions.\u201d<\/strong><\/em><\/p>\n Those words were used by\u00a0Special Counsel Jack Smith to propose a gag order<\/a>\u00a0that would sharply curtail the ability of former President Donald Trump to criticize Smith and his prosecution.<\/p>\n The Smith motion is anything but \u201cnarrowly tailored.\u201d<\/p>\n Indeed, short of a mobile \u201cGet Smart\u201d Cone of Silence,\u00a0it is chilling to think of what Smith considered the broader option.<\/strong><\/p>\n Smith told District Judge Tanya Chutkan in Washington, D.C., that Trump could \u201cpresent a serious and substantial danger of prejudicing\u201d his 2020 federal\u00a0election interference case<\/a>.<\/p>\n Smith compared Trump\u2019s comments on the trial to the \u201cdisinformation\u201d spread by Trump after the 2020 election \u2014 the subject of the indictment.<\/p>\n The\u00a0motion\u00a0states<\/a>\u00a0that Trump\u2019s \u201crecent extrajudicial statements are intended to undermine public confidence in an institution \u2014 the judicial system \u2014 and to undermine confidence in and intimidate individuals \u2014 the Court, the jury pool, witnesses, and prosecutors.\u201d<\/strong><\/p>\n I have long criticized Trump\u2019s inflammatory comments over these cases, but Smith\u2019s solution veers dangerously into core political speech in the middle of a presidential election.<\/p>\n Ironically, Smith\u2019s move will likely be seen as reinforcing Trump\u2019s claim of intentional election interference by the Biden Administration.<\/p>\n I do not view it that way, but I do believe Smith is showing his signature lack of restraint in high-profile cases, a tendency that led to the\u00a0unanimous overturning of his conviction<\/a>\u00a0of former Virginia Republican Gov. Robert McDonnell.<\/strong><\/p>\n Smith seeks to bar comments \u201cregarding the identity, testimony, or credibility of prospective witnesses\u201d and \u201cstatements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.\u201d<\/p>\n Gag orders have become commonplace in federal trials, particularly high-profile cases.<\/strong><\/p>\n I have\u00a0criticized<\/a>\u00a0the increasing use of gag orders for years due to concerns over the free speech. Typical orders often seek to shutdown public comments in the interests of protecting jury pools. Even \u201cnarrower\u201d orders are written with vague terminology like \u201cdisparaging\u201d and \u201cintimidating\u201d that expose defendants to punitive action if they cross uncertain lines in public defending themselves. No one seriously questions the ability of courts to limit the release of sealed material or to bar threatening comments directed at jurors, witnesses, or court staff. Moreover, there are laws on the books allowing for the prosecution of cases of threats or efforts to influence jurors or witnesses.<\/p>\n More importantly, this is no typical case.<\/strong><\/p>\n Smith has pushed for a trial before the election and the court inexplicably shoehorned the trial into a crowded calendar just before the Super Tuesday election.<\/p>\n Judge Chutkan\u00a0previously stated<\/a>\u00a0that\u00a0\u201cI cannot and I will not factor into my decisions how it will factor into a political campaign.\u201d<\/strong><\/em><\/p>\n This motion, however, would impose substantial limits on a national political debate and begs the question of whether the court is failing to balance the rivaling constitutional interests in this unprecedented situation.<\/p>\n It could not only test Chutkan\u2019s position but prompt an early appeal.<\/p>\n One of the top issues in this presidential campaign is Trump\u2019s insistence that the Justice Department and the criminal justice system have been weaponized by Democrats.<\/strong><\/p>\n He was running on that issue even before the four separate criminal cases were filed against him in Florida, Georgia, New York, and Washington, D.C.<\/p>\n More importantly, it is an issue that is resonating with tens of millions of Americans.<\/strong><\/p>\n One poll showed<\/a>\u00a062% of the public viewed the prosecutions as \u201cpolitically motivated.\u201d<\/p>\n Another poll shows<\/a>\u00a0that 65% still view the prosecutions as \u201cserious.\u201d Between these polls is found a raging debate among citizens and candidates over the merits and motivations of these cases.<\/p>\n Under Smith\u2019s proposed motion, almost everyone (including Biden) will be able to discuss this case but Trump himself.<\/strong><\/p>\n Disparaging criticism of Smith or key accusers could land Trump in jail under an ambiguous standard.<\/p>\n That is a rather hard standard to respect when you are alleging that Smith is part of a politically motivated hit job.<\/p>\n Moreover, gagging Trump would not impact the level of inflammatory or insulting commentary.<\/p>\n By scheduling a trial of the leading candidate for the presidency in the middle of the election season, the cases will continue to occupy a high level of coverage and commentary.<\/strong><\/p>\n This jury pool will be inundated with such commentary on both sides and Trump\u2019s prior comments on the case will be replayed continually in print, radio, and television outlets.<\/p>\n In light of that reality, the question is whether gagging Trump will materially change the impact on potential jurors.<\/p>\n Conversely, it will gag a candidate on a major issue before the public.<\/p>\n Worse yet, one of the potential witnesses is one of Trump\u2019s opponents: former Vice President Mike Pence.<\/p>\n Other potential witnesses are political figures who have engaged in commentary on the underlying allegations.<\/p>\n To be clear, I criticized Trump\u2019s Jan. 6 speech while he was giving it.<\/p>\n I supported Vice President Mike Pence and his certification of the election of Joe Biden.<\/p>\n Despite my disagreement with Trump on that day and his claims of voting fraud, he is making his case to the American people on his past conduct.<\/p>\n This was not some manufactured claim to allow him to poison a jury pool. It has been building for years and\u00a0long ago some of us\u00a0predicted\u00a0that this election<\/a>\u00a0would be the largest jury verdict in history.<\/p>\n These courts have elected to daisy-chain trials before the election.<\/strong><\/p>\n The timing guaranteed the maximum level of coverage and commentary.\u00a0<\/strong>At this point, a broad gag order is like running for a hand pump on the Titanic.<\/p>\n A truly \u201cnarrowly tailored\u201d order would focus on comments deemed threatening to witnesses or jurors.<\/p>\n![\"\"](\"https:\/\/www.zerohedge.com\/s3\/files\/inline-images\/2023-09-18_05-18-01.jpg?itok=oTBFsYtx\")
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