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Trump says partial silence is ‘unconstitutional,’ but it’s not

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In the ongoing federal election interference case against Donald Trump, Special Counsel Jack Smith’s office has requested a silence against the former president. As NBC News reported, U.S. District Judge Tanya Chutkan favored the request — at least in part.

The judge overseeing the federal election interference case issued a partial silence order Monday barring former President Donald Trump from making statements about potential witnesses or disparaging comments about prosecutors.

As my MSNBC colleague Jordan Rubin explained, the Republican defendant “will not be permitted to make statements about potential witnesses and their testimony.” Trump will also be prohibited from attacking prosecutors in Smith’s office, their families or any other courthouse personnel.”

That said, as the NBC News report adds, as part of the same partial silence, Chutkan added that she would not place restrictions on Trump’s statements about Washington, D.C. and its residents, or on statements criticizing the government or the Ministry of Justice in general.

Unsurprisingly, the front-runner for the 2024 GOP nomination was not happy. At a campaign event in Iowa, held just hours after the judge’s order, Trump cried, “I will be the politician in history who presents himself under the seal of silence and does not allow myself to criticize people. Can you imagine this? He added: “It’s SO unconstitutional.”

The idea that the former president is now prohibited from “criticizing people” is patently false. In fact, the judge in the case seemed to anticipate Trump’s inevitable complaints and took pains to explain the situation.

“My review of Mr. Trump’s past statements in particular, as well as the evidence that they led to harassment and threats against the people he targeted, convinces me that without this restriction, there is a real risk that witnesses may be intimidated or unduly influenced and that other potential witnesses may be reluctant to come forward for fear of being subjected to the same harassment and intimidation,” Chutkan explained in court at the end of the proceedings.

She added: “Now let me be clear: Mr. Trump can still vigorously seek public support as a presidential candidate, debate policies and people related to that candidacy, criticize the current administration and affirm his belief that these prosecutions are politically motivated. But these essential First Amendment freedoms do not allow him to launch a pretrial smear campaign against participating officials, their families, and predictable witnesses. No other defendant would be allowed to do this, and I will not allow it in this case.

And yet the defendant nevertheless spent the day repeating his “unconstitutional” argument, out loud and online, as if it had merit.

I imagine some might wonder if Trump is right. After all, you and I are free under the First Amendment to say whatever we want about the federal election interference case. Shouldn’t the defendant benefit from the same opportunities?

Actually no. As Chutkan explained to one of Trump’s lawyers: “Mr. Trump is a criminal defendant. He faces four criminal charges. He is under the supervision of the criminal justice system and must comply with the conditions of his release. He doesn’t have the right to say and do exactly what he wants.

Additionally, it’s worth pausing to appreciate the fact that Trump generally defines “unconstitutional” as “things he doesn’t like.” When Robert Mueller was appointed special counsel, Trump said it was “unconstitutional.” When he was first impeached, it was also called “unconstitutional.”

To hear the former president say itthe vote counting process in 2020 was also “unconstitutional,” as were his criminal charges.

It’s likely that a member of his legal defense team tried to explain to him what “unconstitutional” means, but it might be time for a refresher.

As for the partial silence, Trump has announced his intention to appeal. Watch this place.



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