Former special counsel Jack Smith sat for a hearing with the House Judiciary Committee on Thursday, and congressmen from both parties for the most part bombastically plowed familiar political ground. But one subject that finally got due attention was the prosecutor’s effort to impose a gag order on Donald Trump while he ran for the office he now occupies.
Smith is out of power today, the target of presidential vitriol and threats as Trump sics the Justice Department on his political opponents. But it’s still worth setting the record straight on Smith’s tactics for those who can’t or won’t recognize how liberal legal aggression during the Biden years helped bring the country to this point.
When members of the House committee pressed Smith on the scope of his proposed gag order in the election-interference case against Trump, Smith repeatedly cast it as an ordinary measure to protect witnesses, one that judges largely affirmed. He told Kevin Kiley (R-California) that an appeals court that ruled on the gag order “found that it was justified.”
Sympathetic media coverage has mostly indulged Smith’s account. But it doesn’t come close to capturing the excess of what was attempted. In September 2023, the special counsel sought a sweeping gag order against Trump that would have not only barred him from criticizing potential witnesses but also sharply curtailed his ability to object to his own prosecution.
Smith asked Judge Tanya S. Chutkan to bar Trump from making “disparaging and inflammatory” statements about “any party” to the case. One of the parties to the case (United States of America v. Donald J. Trump) was the Biden-led federal government. The requested gag order would have put Trump, as a candidate for president, at risk of being remanded to jail during the 2024 campaign for criticizing the incumbent Justice Department.
That’s not hyperbole; defendants who violate gag orders can be jailed, and statements from Trump that Smith’s filing identified as out of line included “This is not an independent Justice Department, this is not an independent special counsel,” and “WE HAVE A DEPARTMENT OF INJUSTICE RIGGING THE ELECTION FOR CROOKED JOE BIDEN.” The filing generously conceded that Trump should still be allowed to make “proclamations of innocence.”
The point — and House Republicans could have done a much better job developing it in this week’s hearing — is that Smith wasn’t merely trying to protect witnesses in the case. He was trying to mute Trump’s public criticism of the prosecution itself.
Smith spun court rulings on the question as vindication. In fact, even sympathetic judges balked at his gag-order overkill. Chutkan, an Obama appointee, agreed in October 2023 to limit Trump’s ability to put potential witnesses on blast, but she also denied a big part of Smith’s request. She clarified that Trump was allowed to make statements “criticizing the government generally, including the current administration or the Department of Justice” and to assert “that his prosecution is politically motivated.”
That substantially reduced the First Amendment damage Smith tried to inflict. But the U.S. Court of Appeals for the District of Columbia Circuit still had to roll back the gag order further “to bring it within constitutional bounds,” as the court put it. Three appellate judges — all also appointed by Democratic presidents — joined a ruling that noted a defendant’s right to “speak out against the prosecution and the criminal trial process that seek to take away his liberty.”
Smith testified at the House hearing that the appeals court narrowed the gag order so “that it didn’t cover me anymore, which I was fine with.” Really? Then he shouldn’t have fought so hard to outlaw Trump’s criticism of the prosecution. Smith told the House committee that “the First Amendment does not allow one to make statements that interfere with the administration of justice,” but he seems to still be in denial about the First Amendment requirements of a political campaign that had at its center the prosecution of one of the candidates.
That tunnel vision raises questions about whether Smith’s broader case was viable. He charged Trump in part over his false claims that the 2020 election was stolen, but false political claims are usually constitutionally protected. On the evidence of the gag-order litigation, Smith’s First Amendment judgment is not perfect. In September, a Michigan judge dismissed the state’s prosecution of 2020 Trump electors who featured in Smith’s indictment, citing First Amendment concerns.
Democrats on the House committee hailed Smith as a model prosecutor and a moral beacon, but they should hope that prosecutors in the current administration can be held to a higher First Amendment standard. They probably should also hope that Attorney General Pam Bondi’s Justice Department won’t seize their phone call records without their knowledge in a criminal investigation, as the Biden Justice Department did for GOP members of Congress during the Trump case.
Smith defended those subpoenas as a necessary legal step to find out with whom Trump was communicating around the Jan. 6 riot. But it’s still a mystery why the subpoena for phone records belonging to Rep. Jim Jordan (R-Ohio), now chairman of the House Judiciary Committee, extended to April 2022 — well after Trump’s attempt to overturn the election and more than two years into the Biden administration.
The Trump Justice Department is behaving more recklessly (and incompetently) than Biden’s in pursuing the administration’s opponents; it would be nice if the House Judiciary Committee could conduct some oversight of the prosecutors actually in office. But it’s still important to ventilate what was arguably the most consequential criminal probe in American history. One day, the liberal legal establishment that venerates Smith will be back in control of the executive branch. It will need to decide whether to replicate his methods, in the hope that they will work the next time, or restore some measure of constitutional restraint.
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