Trump likely to face gag order after he targeted Pence, Jack Smith online, experts say

Important Points

Jack Smith, a special counsel, has already filed a court document citing the ex-president’s social media tirades.

Experts predict that Donald Trump could be soon strapped with a muzzle ordered by a court as he intensifies his attacks against a growing number of targets related to his many legal battles.

They say it is an open question whether a gag-order could be enforced on Trump, a leading White House candidate with a habitual social media use and a message based around his self proclaimed political persecution.

Neama Rahmani, a former federal prosecutor told CNBC: "I believe a gag is likely. I'm not sure whether it will be enforced."

He said, "I've seen a lot of judges who have covered these types of cases. They've all been barking, but no bite."

Gag orders

Legal experts say that gag orders are only issued when a judge feels the fairness of the trial is at risk. Judges will need to balance First Amendment concerns with the need to protect witnesses and jury pools.

In a CNBC statement, Norm Eisen, legal expert and executive director of the States United Democracy Center and a leading authority on ethics and law, said: "Ultimately, it is the burden of the prosecution to prove to the judge that such orders are needed in these circumstances."

A jury should only consider the evidence they've heard or seen inside the courtroom. Matthew Galluzzo said that Trump's frequent statements about his cases, which are the most closely followed proceedings in the nation, could be an attempt to influence the trial.

Galluzzo stated, "You don't normally see someone so blatantly try to break the rules of a trial."

Joshua Ritter is a criminal defense lawyer in Los Angeles. He said that the more Trump speaks out about his cases, then it's more likely to be a gag.

Ritter stated that if a judge were to issue such an order, the order would be "probably less restrictive than most," because he will need to balance Trump's political speech rights with the need to preserve the integrity of his trial.

Ritter noted that Trump's message of "being persecuted" is a "large portion" of his campaign.

Trump's campaign has made the indictments a major part of its fundraising pitches as well as other messages. A new ad released over the weekend targeted Smith and other prosecutors that have brought cases against Trump.

This ad was primarily focused on Fulton County district attorney Fani Willis. She is expected to seek indictments soon in her state-level investigation of possible interference by Trump's allies in Georgia 2020 elections.

Trump is already prohibited from posting on social media about certain evidence in the Manhattan DA Alvin Bragg hush-money case. The DA's Office had insisted that it was not seeking a ban on Trump because he has a constitutional right of speaking publicly about the case.

If Trump is prohibited from talking about certain parts of a federal case but ignores the order, a judge could be forced to punish him in a way that has never been done before.

Tanya Chutkan, U.S. district judge, is assigned to Trump’s latest federal case.

Does Chutkan possess the courage to sanction or imprison Donald Trump? Rahmani replied. "Maybe. But you must be willing to enforce this gag order."

Protective order

Jack Smith, the special counsel in charge of two criminal cases pending against the former president, has submitted a court document citing the social media tirades by the ex.

Smith's Friday night filing singled out a post from Trump on Friday afternoon that stated, "IF you go after me, I will come after you!"

Smith is seeking a protective order to prevent Trump from sharing sensitive information in the federal case accusing him of trying to reverse his loss at the 2020 elections.

Smith wrote: "If defendant began to issue public posts using details - or, for instance, grand jury transcripts - obtained during discovery, it could have an adverse effect on the fair administration justice in this case or a harmful chilling affect on witnesses."

A Trump campaign spokesperson responded by saying that the post cited in Smith's filing was "the definition of political expression." A spokesperson for the Trump campaign claimed that Trump did not target his legal opponents, but instead "the RINOs, China-loving special interest groups, and Super PACs like those funded by the Koch Brothers and the Club for No Growth."

In a Monday night filing, Trump's lawyers argued that Justice Department's proposed protective orders were overbroad. Defense attorneys suggested a more narrow order, which they claimed would protect "only truly sensitive materials" from public view.

Trump "doesn't contest the government’s claimed interest in limiting some of the documents that it must produce," wrote the authors. "However the need to protect this information does not require that all government documents be placed under a blanket gag."

In a post on social media earlier Monday, Trump said that a protective court order "would interfere with my right to free speech." Trump claimed in the same social media post that Smith and the Department of Justice would be bound by a protective order because they were "leaking" information.

Trump has already entered a not guilty plea in two other criminal proceedings. Smith's Office filed charges in Miami Federal Court stemming from Trump’s retention of classified information after leaving office in 2020. Manhattan prosecutors have also filed charges for falsifying records in relation to payments of hush funds made to women claiming to have had extramarital affairs.

Trump's Blitz

Trump has been on a blitz since pleading no contest to criminal charges in court last Thursday. This was his third indictment this year and the arguably most serious. He vented his rage against the prosecutors, potential witnesses, and even the judge who presided over his latest case.

Trump posted three posts in all caps on Truth Social Sunday morning. "THERE IS NOT A WAY I COULD GET A FAIR TRY WITH THE JUDGE "ASSIGNED" TO THE RIDICULOUS FRAUD OF FREEDOM OF SPEECH/FAIR EVENTS CASE."

"EVERYONE KNOWS THIS AND SHE DOES TOO!" He wrote.

Trump said that he would seek a different judge and venue for the federal court case in Washington, D.C., in which he was accused of conspiring with others to reverse his loss in 2020's presidential election.

Chutkan is a former president Barack Obama appointee who has handed down harsh sentences in cases relating to the Capitol riot of January 6, 2013.

Trump's criticism of Chutkan comes a day after his attack on Mike Pence, a former vice president who was a key figure involved in the indictment and is now being considered as a potential trial witness.

Indictment claims that Trump called Pence "too honest" after he protested Pence's dubious legal theory claiming that he would help Trump win the election by refusing certain electoral votes. Pence's campaign for president has begun selling merchandise featuring that quote.

Trump denied on Saturday calling Pence too honest and accused his former vice president of turning to the "Dark Side."

Trump wrote, "He is delusional and wants to prove he's tough," on Truth Social.

In an interview with CBS News on Sunday, Pence did not exclude the possibility that he could testify as a witness at Trump's trial.

Trump, as well as President Joe Biden, has continued to rail at Smith.

Trump claimed that the government was conspiring to stop his presidential bid in 2024 by forcing him spend money and time on his growing legal problems.

"THIS IS ABOUT ELECTION INTERFECTION!" Trump accused his opponents in a letter he wrote on Monday afternoon.

Trump has asked the U.S. Supreme Court "to intervene" against the Biden Administration. Biden has no involvement in Trump's criminal investigations.