Judge Chutkan Faces First Amendment Balancing Act With Trump: Ex-Prosecutor

U.S. District Judge Tanya Chutkan may face a difficult balancing act when weighing former President Donald Trump's criminal trial against his First Amendment rights, according to former federal prosecutor Chuck Rosenberg.

Chutkan, the presiding judge in the federal felony case involving Trump's attempts to overturn the 2020 presidential election outcome and the ensuing January 6 Capitol attack, is expected to rule Friday on Special Counsel Jack Smith's request for a protective order that could limit the former president's ability to discuss aspects of the case publicly.

Trump, who has pleaded not guilty to all charges, has repeatedly lashed out at Chutkan and Smith in public and frequently refers to all three of his coming criminal trials on social media, claiming that he is the victim of a politically motivated "witch hunt." The call for a protective order came after the ex-president threatened to "come after" those who "go after" him.

Rosenberg, a former U.S. attorney for the Eastern District of Virginia and the Southern District of Texas, said during an MSNBC interview on Thursday night that Trump's status as the current front-runner for the 2024 GOP presidential nomination could complicate the potential process of placing restrictions on his speech. He also expressed skepticism that Trump would follow any restrictions that may be imposed.

"We've never had as a criminal defendant somebody who is also likely to be a major party nominee for president," said Rosenberg. "Judge Chutkan has to balance those First Amendment rights and his interest in campaigning, his right to speak publicly about the campaign and his promise for office, with the needs of a criminal trial. Which include a lot of restrictions on a lot of defendants in ordinary cases around the country."

"There are restrictive rules in this particular federal court that limit what a defendant can say and limit what lawyers can say, and give a judge the right to oppose strict conditions on them," he continued. "A whole separate question, of course, is whether Mr. Trump would abide any of those restrictions. He's not very good at that, as you know."

Newsweek reached out for comment to Trump lawyers John Lauro and Todd Blanche via email on Thursday night.

While Smith is seeking a limited protective order, retired California Superior Court Judge LaDoris Cordell predicted during a CNN interview earlier this week that Chutkan would be forced to impose a more restrictive gag order on Trump because he "cannot shut up" about the case. She also predicted that Trump would violate the order "in a heartbeat."

In addition to serving as a federal prosecutor, Rosenberg was a senior FBI official and served as acting administrator of the Drug Enforcement Administration (DEA) under Trump and former President Barack Obama. He was appointed to the DEA by Obama and resigned in September 2017 after objecting to Trump making remarks that seemingly endorsed police brutality.