On the other hand, hours after news broke asserting that
former Chief of Staff Mark Meadows was cooperating with the
Special Counsel, Mr. Trump asked on social media whether
Meadows was the type of “weakling[] and coward[]” who
would “make up some really horrible ‘STUFF’” about Mr.
Trump in exchange for “IMMUNITY against Prosecution
(PERSECUTION!) by Deranged Prosecutor, Jack Smith.”
Special Counsel Mot. Reply 9. That statement, considering
both its timing and its content, concerns Meadows’s potential
cooperation with the prosecution and his potential testimony
against Mr. Trump and so is properly proscribed.
There no doubt will be some close cases in which it will
be difficult to determine whether a statement concerns a
foreseeable witness’s potential participation in the
investigation or in this criminal proceeding. But resolving such
factual disputes falls well within the district court’s
wheelhouse.
Mr. Trump argues that the Order’s reference to
“reasonably foreseeable witnesses” and to the substance of
their potential testimony is unconstitutionally vague. Trump
Br. 53–54. That is incorrect.
In short, the Order’s effort to protect witnesses is
permissible as modified to prohibit only those statements that
concern reasonably foreseeable witnesses’ potential
participation in the investigation or in this criminal proceeding.
Whether a statement about a reasonably foreseeable witness
concerns her potential participation in the investigation or in
this criminal proceeding must be determined by reference to
the statement’s full context.
C
As for the protection of counsel and staff working on the
case, the Order requires some recalibration to sufficiently
accommodate free speech.
We start by noting the obvious. This criminal proceeding
places significant demands on all counsel, the defendant, and
court and counsel staff. The case, which is the object of
enormous public and press attention, is just a few months from
trial and involves 47,000 pages of key documents and hundreds
of potentially relevant witnesses. Pretrial briefing alone has
been voluminous, with four separate motions to dismiss the
indictment on various grounds, in addition to ten other
substantive motions.
Some statements concerning counsel or staff working on
this case, or their family members, are highly likely to trigger
a barrage of threats, intimidation, or harassment that pose an
imminent risk of materially interfering with the work of
counsel and court personnel as they labor to fairly and orderly
adjudicate this complex criminal proceeding. In view of the
demands on counsel and court personnel, and the “significant
and immediate risk that attorneys, public servants, and
other court staff will themselves become targets for threats and
harassment[,]” Order at 2, the district court had the authority to
take some steps to prevent obstruction of the court’s capacity
to manage and conduct this case in an effective, efficient, and
timely manner, see Sheppard, 384 U.S. at 363.
At the same time, speech about the criminal justice system
is vital. The courts are the people’s Third Branch of
government and, especially in criminal cases, “play a vital part
in a democratic state[.]” Gentile, 501 U.S. at 1035. As a result,
the public has a strong and “legitimate interest in their
operations.” Id. That interest is magnified in criminal cases,
where public scrutiny promotes transparency, accountability,
and integrity. “
t would be difficult to single out any aspect
of government of higher concern and importance to the people
than the manner in which criminal trials are conducted.”
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575
(1980). Allowing robust speech can “guard[] against the
miscarriage of justice by subjecting the police, prosecutors, and
judicial processes to extensive public scrutiny and criticism.”
Sheppard, 384 U.S. at 350.
As written, the Order prohibits interested parties from
making or directing others to make any public statements that
target—that are directed to or aimed at—prosecutors or court
staff. Order at 3. That goes too far. Prosecutors are vested
with immense authority and discretion, including the power to
take steps that can result in persons’ loss of liberty. The public
has a weighty interest in ensuring that such power is exercised
responsibly. And criminal defendants facing potential
curtailments of liberty have especially strong interests in
commenting, within reasonable bounds, on prosecutors use of their power.