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Big Hole in Trump Narrow Gag Order

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Trump Can Still Ask Others to Do What the Gag Order Prohibits

WASHINGTON - eTradeWire -- Even if U.S. Judge Tanya Chutkan grants the motion by special counsel seeking a narrowly tailored gag order on Donald Trump, it will still contain a hole big enough to drive a wrecking truck through, and there may be nothing the court can do about it, says public interest law professor John Banzhaf.

Thus, even if Trump does not defy the order once issued, many of his supporters - including members of Congress, talk show hosts, and members of PACs - can still do exactly what is prohibited by the order.

Moreover, there is nothing in the order which would prevent Trump himself from imploring those who believe in him and in his innocence from doing exactly what the order bans: making "statements regarding the identity, testimony, or credibility of prospective witnesses" or "statements about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating."

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Members of Congress who have spoken out on behalf of Trump, and also well financed political action committees (PACs), groups such as the Proud Boys or the Oath Keepers, as well as numerous individual talk show hosts, podcasters, and other "influencers" who collectively reach and influence tens of millions of people are not parties to the proceeding, and therefore would not limited in any way by the proposed limited gag order.

To take an extreme example, Trump would not be prohibited by the proposed limited gag order from saying to a PAC, talk show host, or other supporter:

"My unamerican enemies have violated my First Amendment rights with a unconstitutional gag order, so you must do what I cannot do myself.  Please go out and make statements regarding the identity, testimony, or credibility of prospective witnesses, and also statements about the parties, witnesses, attorneys, court personnel, are potential jurors that are disparaging and inflammatory, or intimidating.  You know who they are - so I'm counting on you to protect me and democracy by speaking out on my behalf because I cannot do it myself.  To protect yourself, simply say you are speaking out as a loyal American patriot with no intent whatsoever to intimidate or otherwise tamper with anybody."

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Professor Banzhaf filed the formal legal complaint which led to the investigation and indictment of Trump in Georgia, but he has played no role in Trump's federal criminal proceedings.

So the irony is that if the motion is granted and the gag order issued - and if Trump, rather than defying it, simply asks his supporters to repeat his claims - more people are likely to accept the claims coming from many different sources rather than any claim coming from Trump.

http://banzhaf.net/   jbanzhaf3ATgmail.com   @profbanzhaf

GW Law

Source: Public Interest Law Professor John Banzhaf
Filed Under: Legal

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