Jack Smith’s War on Free Speech: Attorney General Garland Should Rein in His Special Counsel

by | Oct 30, 2023


Below is my column in The Messenger on the renewed effort of Special Counsel Jack Smith to gag former President Donald Trump. At the same time, Judge Arthur Engoron has repeatedly fined Trump for his public statements about the New York fraud case. Engoron declared this week “Anybody can run for president. I am going to protect my staff.”

There is widespread support for barring attacks on court staff and Trump did attack the Court’s clerk in a prior posting. However, most of his comments have been directed at Engoron and his alleged hostility toward Trump. Where to draw this line is the subject of this column. In my view, criticism of the case, the court, and the prosecutor should be treated as protected speech.

Here is the column:

In 2016, the Supreme Court issued a unanimous opinion overturning a conviction that the Department of Justice (DOJ) had seemed willing to secure at whatever cost to the rule of law. The case involved the prosecution of former governor Bob McDonnell (R-Va.), and the lead DOJ prosecutor was now-special counsel Jack Smith. The court dismissed the “tawdry tales” offered by the DOJ and declared that it was far more concerned with the damage that Smith was causing to the legal system with his virtually limitless interpretation of criminality.

The rebuke came to mind this week as Smith continued his unrelenting effort to gag former president Donald Trump before the 2024 election. Some of us have previously denounced the gag order issued by U.S. District Judge Tanya S. Chutkan as unconstitutional, but even that order was more limited than what Smith had demanded.

Even the American Civil Liberties Union (ACLU), a leading critic of Trump, has come out against Smith’s efforts as an attack on the First Amendment.

Undeterred, Smith now wants to reinstate and expand the gag on Trump, citing Trump’s comments about his former chief of staff, Mark Meadows, who reportedly has been given an immunity deal by Smith. (Meadows’ lawyer disputes those reports.)

Smith wants to bar Trump from criticizing any witnesses as well as the prosecution and the court. That would include criticisms of former Vice President Mike Pence, currently one of his opponents for the 2024 Republican presidential nomination, on his allegations linked to the earlier election.[Update: after this column ran, Pence withdrew from the presidential campaign]

Of course, gagging Trump will not materially affect the jury pool in the case. The Smith prosecutions are one of the biggest issues in this election. Moreover, it will not protect potential witnesses from withering criticism in the middle of an election that could turn on the public view of these cases.

Indeed, Smith has insisted on trying Trump before the election but now also wants to prevent him from speaking fully about the case before the election. Trump alone would be gagged, even as other politicians and pundits debate the merits of the cases and the countervailing allegations of the weaponization of the criminal justice system.

The prior order issued by Judge Chutkan is shockingly vague and overbroad. It bars Trump from “targeting” Smith or his staff or potential witnesses or the “substance of their testimony.” It leaves an undefined and uncertain line as Trump campaigns on what he (and millions of citizens) view as the abuse of the criminal justice system to target President Biden’s main political opponent.

Smith would add to the scope and ambiguity of the order in his latest motion. He is arguing that the court should “modify the defendant’s conditions of release … by clarifying that the existing condition barring communication with witnesses about the facts of the case includes indirect messages to witnesses made publicly on social media or in speeches.”

Consider that for a moment: Smith would treat comments about witnesses, such as Meadows or Pence, as an effort to communicate with a witness.

Thus, Smith continues to litigate with a sense of utter abandon, showing his signature lack of concern for the implications of his legal arguments. It is the type of blind purpose that leads — as it did in the McDonnell case — to a unanimous ruling against you on an otherwise divided Supreme Court.

Ironically, it calls for a level of self-restraint that the trial court itself failed to show in the past. In sentencing a rioter in 2022, Judge Chutkan said that January 6 defendants “were there in fealty, in loyalty, to one man — not to the Constitution.” She added that it was “a blind loyalty to one person who, by the way, remains free to this day.”

Despite clearly indicating with her comment that she believed Trump should be jailed (long before he was indicted), Chutkan has refused to recuse herself in this trial.

The lack of restraint shown by Smith only magnifies the lack of leadership from Attorney General Merrick Garland. The attorney general has repeatedly said that he would give the special counsel full authority and independence. However, that would not ordinarily mean that the attorney general would reduce himself to a mere pedestrian in this process.

This is an example of the ever-shrinking profile of Garland at the Justice Department. He has often told Congress that his knowledge of controversies is limited to what he has read in press accounts. Even beyond the special counsel’s investigations, he seems as proactive as a ficus plant.

Yet, this new gag motion presents a far more serious cost to Garland’s passive role at the department. Smith is taking a hatchet to the First Amendment in these motions. In doing so, he is fueling anger over the perception of a weaponized criminal justice system.

Smith’s deafening attacks on free speech are matched equally by Garland’s utter silence. The attorney general seems to believe that removing himself entirely from these investigations is more important than guaranteeing that his department does not become the enemy of core constitutional rights.

As Smith seems intent on inviting another unanimous Supreme Court opinion against his department, Garland may want to consider voicing a modicum of concern over the cost to free speech in Smith’s efforts to gag Donald Trump.

Reprinted with permission from JonathanTurley.org.


  • Jonathan Turley

    Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, University of Chicago, and other schools.

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