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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. We'll talk now about the unique legal situation that's current right now of three separate courts placing three separate gag orders on Donald Trump with respect to the trials in which he's a defendant. The central question, when are and when should American criminal defendants be prohibited from speaking or posting publicly about aspects of their cases or even in some cases privately, we'll get to that. Or posting about the prosecutors, the judges, and their staffs.

A staff member of a judge is the target of one of these gag orders on Trump because of something he said about a staff member, witnesses, or anyone else. How different is or should it be when the defendant is a leading candidate for office at the same time and argues that his prosecution is political and he has his First Amendment rights of free speech to say so in various ways. With us now is Aziz Huq, scholar of US and comparative constitutional law at the University of Chicago. Much of his recent work concerns Democratic backsliding and the regulation of AI.

Today, we'll talk with him about gag orders and also touch on the plea deal entered yesterday in the Georgia election interference case by former Trump inner circle member attorney Sidney Powell, how threatening for Trump, how much might it also get more truth and a fuller telling of history into the record about the big lie that the election was stolen by Democrats. Professor Huq is also author of a forthcoming book called The Rule of Law: A Very Short Introduction, and who knows, if it's very short, maybe Donald Trump will even read it. Professor Huq, thanks for joining. Welcome back to WNYC.

Aziz Huq: Thanks for having me, Brian. I'm not optimistic about my readership as you are.

Brian Lehrer: [laughs] Can we do gag order 101 to start? What is it? Why can judges order any defendant not to say things that might help their defense?

Aziz Huq: A gag order is a legally binding instruction from a court either to a party, as in this case, or to lawyers appearing before the court, limiting what they can say outside the courtroom concerning a case. The reason that judges impose gag orders is that lawyers or defendants might use their public platforms to influence a case in ways that distort or undermine the fairness of a trial.

Brian Lehrer: Are there some famous or precedent-setting gag orders in US history?

Aziz Huq: One very recent example of what in effect was a gag order comes out of the Sam Bankman-Fried prosecution. As many will recall, Judge Kaplan of the Federal District Court in Manhattan revoked Bankman-Fried's bail because he had made disclosures of the statements Caroline Ellison had previously made. Judge Kaplan said he was revoking Bankman-Fried's bail because these disclosures might influence Ellison's willingness to testify. In effect, what the judge did in that case was to use the bail conditions as a limit upon what Bankman-Fried could or could not say, could or could not disclose before a trial.

Before that, there have been very famous gag orders in cases involving the rape allegations against Kobe Bryant, the murder of Lauri Peterson, the famous allegations against the Duke lacrosse team, and even going back a little bit further at the OJ Simpson trial.

Brian Lehrer: For you as a professor of comparative constitutional law, do other countries do this?

Aziz Huq: Other countries frequently employ gag orders? As a generalization, the United States has a much stronger free speech tradition than other countries. What this means is that non-US judges tend to be more free to have more latitude in imposing gag orders. For example, in the United Kingdom, a British judge can enforce or implement something called a super injunction. A super injunction is a bar or gag order that prevents a party to a case, not just from speaking about the case, but even revealing the existence of the gag order. A judge can do that not just in a criminal case where fair trial values are paramount, but even in a civil matter where the fairness and due process concerns are weaker.

Brian Lehrer: Now, listeners, we can take your questions for University of Chicago Law Professor Aziz Huq on all things gag order. 212-433-WNYC in general as we're using this as an opportunity for a little civics lesson, but obviously as specific to Donald Trump, which we're about to get into. 212-433-WNYC, 212-433-9692. Call or text.

Now to get specific to Trump, Professor Huq, it looks to me like three different courts have issued three different gag orders with overlapping but somewhat different focuses. I have the Georgia election case looking at an article on Forbes. It says under the terms of Trump's bond agreement in Georgia for the case where he is accused of trying to overturn the 2020 election. This is the one in which Sidney Powell took a plea deal yesterday. We'll come back to that in that context later. This says the ex-President cannot communicate with any of his co-defendants in the case or any potential witnesses about the facts of the case, and he cannot intimidate them, or as the judge put it, otherwise obstruct the administration of justice.

Then there's the Manhattan Criminal case where as Forbes described it, a protective order was imposed on Trump and other parties. In the case, this is the alleged hush money payments during the 2016 campaign, and this prohibits Trump and other parties from copying any evidence in the case or sharing it on social media. It's about stopping him from making evidence public. This says it also delays names of court staff or some witnesses in the case from being disclosed until jury selection begins in the trial.

Finally, we have the federal election case. This is the one that's been making news this week under the terms of US District Judge Tanya Chutkan's gag order, which was imposed Monday. Trump and other "interested parties" in the case cannot make public statements that target Justice Department special counsel Jack Smith or his staff, defense counsel and their staff, any court staff, or any reasonably foreseeable witness or the substance of their testimony.

I want to play a clip before we get your take on all of this, Professor Huq, when Judge Chutkan's order specifies that Trump can't make public statements that target special counsel Jack Smith. She appeared to be referring to statements such as this.

Donald Trump: Did you see today that deranged Jack Smith, he's the prosecutor, he's a deranged person, wants to take away my rights under the First Amendment. Want to take away my right of speaking freely and openly. Never forget our enemies want to stop us because we are the only ones that can stop them.

Brian Lehrer: Professor Huq, do you think that's what Judge Chutkan had in mind and why can't a defendant say that?

Aziz Huq: Brian, I would draw a distinction between two kinds of limitations on a defendant's speech. I think in the Florida and the Georgia case, the limitations that have been imposed via the bail orders and the pretrial orders really are tracking existing legal constraints upon what anyone, defendants or otherwise, can say. For example, in the Georgia case, it is already illegal to interfere or to attempt to influence witnesses. In the Florida case, there are already legal constraints upon what can be revealed out of classified documents.

I think that the orders from the New York Civil Court, that's the one issued by Judge Arthur Engoron, and the order from Judge Chutkan in the Washington DC case. That's the case that really centers upon the events of January 6th. These two orders from New York and Washington DC are the most unusual, the most distinctive gag orders in this case, because they go above and beyond the existing legal constraints upon a defendant's speech by picking out specific categories of comments mostly about people somehow connected to the trial that the defendant is not allowed to engage it. These are, I think, the more unusual cases, and they're the ones, I think, that raise the greatest First Amendment issues.

I think it is important to say that there is a genuine conflict in these cases between two vital legal principles that most people see value in. On the one hand, there is a value in the ability of actors in the judicial system, including defendants, their counsel, and the press attending those cases, to speak about what's happening and to criticize the government. That kind of criticism of the government is at the heartland of the First Amendment.

On the other hand, many of the elements of the Bill of Rights focus upon the idea of a fair trial. Much of the Fourth, Fifth, Sixth Amendments are focused upon the idea that there are certain procedural requirements, certain hurdles that both the prosecution and the defense have to jump through in order for us to be able to say, yes, that was a fair proceeding in which both the government and the defendant were able to fairly present evidence, and the fact-finder, be it a judge or a jury, was able to reach a just and accurate conclusion on the facts.

That fair trial principle can come into conflict with the First Amendment when there are efforts, either immediately around the physical courthouse or online, to influence the way a court is proceeding through speech. I think the best illustration of that in this case is the telephone call that was made to Judge Chutkan's courtroom in the wake of postings that the former President made to Truth Social, where a citizen from Georgia threatened the judge and her staff with physical violence and death because of the statements that former President Trump had made. What both the Engoron and the Chutkan orders try and do is to navigate between those fair trial on First Amendment concerns.

Brian Lehrer: It's tough, isn't it, right? The line is not entirely clear. I've seen some legal experts say in the media that Trump might have a case on appeal, especially in the federal case where he can't "attack the special counsel," and some of the things like that, where he might have a case on appeal, or if he gets convicted in one of these trials, he might even have a procedural appeal to protest the conviction on, based on him not being allowed to say things.

Aziz Huq: I think it's certainly true that the established law on how to strike the balance between fair trial and First Amendment interests is not settled. There is a variety of Supreme Court cases which are extremely fact-specific, which set out what I think one can fairly describe as a range of different standards. It's very possible to imagine the former President appealing, particularly Judge Chutkan's order, and he has already said he'd do that, and there being a genuine and difficult set of legal questions raised first to the DC Circuit Court of Appeals and then potentially to the Supreme Court, and that's foreseeable because this is an area where the law is unsettled because there are these two flashing principles.

My own view is that Judge Chutkan's order goes out of its way to strike this balance in a fashion that respects both principles. One of the things that she has done is to clarify that even though the order prevents any person-specific targeting, it leaves the former President free to make any kind of claim he wants, not just relevant to his political campaign but relevant or concerning the President Biden or the Attorney General's motives for bringing this prosecution.

Former President Trump is completely free to cast whatever aspersions he wants, however false, however baseless, on the prosecutions in DC and Florida without regard to this gag order. I think that's worth emphasizing because it draws attention to how careful Chutkan has been in drawing this gag order tightly so it focuses on the specific threats of violence that we know already arise in respect to the January 6 prosecutions.

Brian Lehrer: Let's take a phone call. Jason in the East Village, you're on WNYC, with University of Chicago law professor Aziz Huq on gag orders, and as they pertain to Donald Trump. Hi, Jason.

Jason: Hi, how are you? I just wanted to say that it seems to me that the question of whether or not Donald Trump is having his rights abrogated by all this is a complete red herring. True, he's running for President, but it's not like he announced he is running for President, and somebody went back and dug through his record to find crimes to pin on him. We all saw him commit elements of this crime on January 6 and in the days afterward. The whole world saw it. At the time, as a very wealthy man, he had access to very good quality legal services who told him that it was illegal. As the person in the White House, he had access to very [crosstalk].

Brian Lehrer: Jason, let me jump in. You're arguing the case, which is what the prosecutors will have to do in the ones that are election-related that are coming to trial. That's different than arguing whether Trump can push back in tweets and posts on his social media platform or on television or at rallies, right?

Jason: Yes, as we're discussing here, this is all a very unusual case. I think it was in the public discussion after he committed all these crimes in public view that the only best way for him to dodge all these was to run for President and win and pardon himself, and then we saw him launch his campaign at an unusually early date compared to past candidates running for President and going after this issue right away. When the issue is framed as should presidential candidates be subjected to these kinds of gag orders, it's really a red herring, in this case.

Brian Lehrer: Jason, thank you very much, and I'll put that to you, Professor Huq. Certainly, people could say, are the charges against him different because he's running for President, or should they be handled differently because he's running for President, or is he running for President because he's under indictment?

Aziz Huq: Just as a matter of the settled law of the First Amendment, there's an important distinction between laws that burden core political speech and laws that were intended to burden core political speech. I think that Jason is pushing the idea that only government action that's intended to burden or to limit political speech raises a First Amendment problem. Our settled law, however, is that even if the government does not act with the intention of burdening political speech, if its actions have that effect, there is a First Amendment problem. The timing and the motive of the prosecution here is at least insofar as the First Amendment is concerned, not the pivotal element.

Brian Lehrer: Right, not the motivation. Trump is using the gag orders politically. Everybody agrees on that. They seem to politically help him raise money and stoke a grievance vote. Have you seen him testing? He's certainly been expected to test the limits of the gag order, like daring any of these judges to put him in jail, violate the terms of his bail for violating a gag order, which any other American couldn't get away with.

Aziz Huq: There is a technical legal doctrine called the collateral bar rule. Under the collateral bar rule, if a defendant in a criminal case is subject to a gag order, and they violate the gag order, that has the effect of forfeiting their ability to seek review of the gag order in a higher court. What the collateral bar rule means is that at least in the federal case in Washington, the former President has a choice. He can either violate the rule and essentially take his chances with what Judge Chap Cain will do, or he can hold his rhetorical fire and seek a review first in the DC circuit, and then in the US Supreme Court. At least based upon what the former President has said and past performance here clearly is no prediction of future action. At least based upon what he's said so far, it looks like he's going to take the second, not the first route.

Brian Lehrer: Be a little more restrained as it works through the court system.

Aziz Huq: That's right, and no doubt he is getting advice from his attorneys on what the best pathway to take is. As we've seen, he does not always hew to the advice counsel gives.

Brian Lehrer: Except for one particular attorney who now we're going to talk about for our last few minutes, and that's Sidney Powell. Obviously, I'm making a joke and overreaching when I say he doesn't take lawyers' advices except for Sidney Powell. Let's turn to the Sidney Powell case for our last few minutes. A plea deal by this very important defendant, one of 19, including Trump in the Georgia election interference case. Here are two examples of things that Powell has said on Fox that we should say have shown to be demonstrably false. Here's one on Dominion voting machines on Fox in November 2020 with host Maria Bartiromo asking the question.

Maria Bartiromo: Sidney, we talked about the Dominion software. I know that there were voting irregularities. Tell me about that.

Sidney Powell: That's putting it mildly. The computer glitches could not and should not have happened at all. That is where the fraud took place, where they were flipping votes in the computer system or adding votes that did not exist.

Brian Lehrer: That was false, and one of Sidney Powell's own statements along the way has been, well, people shouldn't have been expected to take me seriously in the heat of a political fight. She was also a figure in the Fox News Dominion lawsuit, the defamation suit that Dominion won over Fox, and another one on Fox, that same month, November 2020, right after the election, speaking about the vote in Arizona.

Sidney Powell: There is no way there was anything but widespread election fraud here. We've got one witness that says, in Arizona, at least there were 35,000 votes added to every Democratic candidate just to start their voting off. It's like getting your $500 of Monopoly money to begin with when you haven't done anything.

Brian Lehrer: Now Sidney Powell has pleaded guilty, and reportedly will cooperate with prosecutors. Aziz, what is she admitting to here or trying to avoid?

Aziz Huq: Ms. Powell has been charged in the Georgia State case, not in the federal case, and chose to enter a plea today, only a few days before her criminal trial was due to start in the Fulton County Courthouse. What she's pled to is six counts of a conspiracy charge concerning the crime of election interference under Georgia law. What she's avoided is a slate of more severely punished felonies, which include not just a number of other conspiracy charges, but also charges under Georgia's racketeering law. These are charges that are very broad, so easy for a prosecutor to prove up and that carry substantial criminal penalties. Ms. Powell avoids jail type under this plea agreement. She is under probation, she has to write an apology and she has to pay certain compensation to the state of Georgia for things she's done.

Although the criminal charges against Ms. Powell are actually quite narrowly focused, they involve a data breach at one Georgia County office, Coffee County. It is expected that she has and will give testimony in the state case and potentially in the federal case. She has already given a written statement to prosecutors and she has already handed over documents. We don't know whether she will be asked to appear and testify at trial. It's important to say that because she's already given testimony behind closed doors, presumably under oath to prosecutors, the prosecutor can always go back to fact-written testimony to ensure that what she says on the stand is truthful. Obviously, the truthfulness and the credibility of a person who's been indicted and then taken a plea for lying is always going to be up for grabs.

The big question I think is whether Powell will take the same cooperation option or will serve as a witness in the federal case, that's before Judge Chap Cain, and whether the time that she spent in the White House between the November 2020 election and January 6th. She was a private attorney, so she was not there all the time, but she was present at crucial meetings. Whether she will provide testimony on what I think will be the key question with respect to Trump's criminal liability in the federal case. The key question is whether Trump believed that what he was doing was faithfully executing his obligation as President to eliminate voter fraud and to ensure a fair election, or whether he intended to act as a political candidate and ensure his own victory through false and knowingly false allegations of voter fraud and actions on the basis of those knowingly false allegations.

Brian Lehrer: This comes back to what I said at the top of this stretch of conversation, which is that Trump seemed to be taking Sidney Powell's advice on how to fight that post-election period. When she was making these crazy assertions of fraud when other people, attorney General William Barr and many other people close to Trump were saying, no, there's no there there. He was willfully taking the threads that Sidney Powell and very few others were giving him and running with those publicly.

Then, Powell later in her own defense, remind me if this was in the Fox-Dominion defamation suit or some other context saying, "No, I should not have been expected to be believed because I was just talking in a political context. Who would believe those things about Arizona and dominion? Ha ha ha." Then, if Trump knew that, knew that she implied even back then that she was making some of this stuff up, well, that makes him even more guilty if he ran with it.

Aziz Huq: The key question that Powell might speak to both in the Georgia case, but I think more importantly in the federal criminal case, is Trump's state of mind and in particular what he believed with respect to the vote of fraud allegations. That state of mind question is pivotal to many of the charges that Jack Smith brought. Absolutely, it's not just a question of whether she says or she's able to cast light on whether Trump believed her, but merely the fact that she was present at a number of key meetings offers an opportunity to prosecutors to extract evidence about the things that Trump said, not merely to Powell but to others. Things that might demonstrate his state of mind, and therefore advance their case on this critical question of intent.

Brian Lehrer: Let's sneak in one more call on gag order. Julian in Northville, New Jersey, I think has a really interesting question. Julian, we have to do it really fast because we're just about out of time, but go for it.

Julian: Sure. My understanding of the Fourth, Fifth, and Sixth Amendment is that they are geared towards making it fair to the defendant. I did not know that they are also designed to be fair to the prosecution. Is that slant correct, and how will that inform the outcome of the appeal?

Brian Lehrer: Really interesting constitutional question. Can you do it in about 30 seconds, Professor Huq?

Aziz Huq: There is no question that you're correct that the Fourth, Fifth, and Sixth Amendment are focused upon the obligations that the government has with respect to the defendant. It's worth, however, reading those in light of Article II's language, the commands that the executive branch take care that the laws be executed. The court has consistently looked at the Take Care Clause as a constitutional obligation on the President and on US attorneys to ensure that laws are fairly enforced, and enforced in appropriate cases to their hilt. I don't think that there is any question that there is a federal constitutional interest in the fairness of trials that pertains not just to the fair treatment of defendants, but also to the fulsome use of trials as mechanisms for enforcing the law under the Take Care Clause.

Brian Lehrer: Aziz Huq, professor of law at the University of Chicago Law School and author of the forthcoming book, The Rule of Law: A Very Short Introduction. Please come back when your book comes out. Always good to have you on the show, Professor Huq. Thank you so much for today.

Aziz Huq: Thanks for having me, Brian.

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