Early Monday morning, just hours before a federal judge began a long-scheduled hearing on whether or not to limit Donald Trump’s and his lawyers’ out-of-court statements, the former president unleashed yet another attack of the exact kind special counsel Jack Smith had asked the judge to address.
Deeming the hearing a “big day for Democracy,” Trump went after the judge, Tanya Chutkan; Smith; President Joe Biden and “his corrupt and weaponized DOJ & FBI” — all of whom, according to Trump, “want to cheat and interfere in the 2024 Presidential Election.”
And given that Chutkan at Monday’s hearing did not clamp down on Trump’s ability to criticize either Biden or the Justice Department generally, Trump’s core complaint — that the criminal cases against him are Biden-orchestrated attempts at election interference — is likely to become even more central to his combined legal defense/political offense.
Why? Because, as The New York Times reported on Sunday, the Trump campaign and even Trump himself have engaged in concerted, methodical outreach to state party chairs with one goal in mind: boosting Trump’s chances of becoming the GOP presidential nominee as early as possible. So far, that outreach seems to be working.
What does this have to do with the federal election interference case against Trump, you’re asking? Everything.
In particular, in California, which has moved up its primary to March 5, aka Super Tuesday, the state GOP will now award all delegates to any candidate who breaks 50%, as opposed to apportioning them by congressional district. And California’s new primary timing, plus its “majority takes all” delegate selection, increases the likelihood that Trump, as the front-runner, can “absolutely wrap it up by Super Tuesday,” as GOP election lawyer Ben Ginsberg explained to the Times.
What does this have to do with the federal election interference case against Trump, you’re asking? Everything. As it stands, the case before Chutkan is scheduled to be tried beginning on March 4, 2024, the day before Super Tuesday. It’s also the first scheduled criminal trial against the former president — and she was emphatic at Monday’s hearing that her trial will not yield to the political calendar. That means none of the criminal trials against Trump will even start until he is already effectively the nominee.
Meanwhile, the unfolding political calendar could enable Trump to advance one of his central themes more convincingly, even if still inaccurately. That theme, which now runs through his social media posts, fundraising emails and stump speeches alike is simply that Biden has encouraged and even instigated unjust indictments against Trump to prevent a free and fair election. Imagine how much worse that will sound to Trump’s supporters if, on the eve of his first, and arguably most important criminal trial, he is already the presumptive Republican nominee.
That makes Chutkan’s ruling on what Trump can and cannot say in advance of the trial all the more important. As Monday’s hearing concluded, Chutkan said she would issue a written opinion, but outlined the general contours of her decision. Trump, she ruled, is not so free from any limits on his speech that he can endanger the administration of justice. Therefore, Trump may not remark about potential trial witnesses and their testimony, nor may he discuss these specific people or categories thereof: Smith; his staff, including career DOJ lawyers detailed to the special counsel’s operation; Chutkan’s staff and other court personnel; and any family members of those people. On the other hand, as he continues to campaign, Trump will remain free to criticize — and even lie about — both Biden and the DOJ in general. He can also continue to rail against heavily Democratic-leaning Washington, D.C., from which all jurors will be drawn, as any bias created by his comments can be addressed during jury selection. Post-hearing, Trump is, in fact, already back at it, referring to Chutkan’s ruling as “the Biden gag order” in texts to his supporters. That he could be the effective nominee as he makes comments like these both before and during the trial might make his rhetoric more dangerous, but no less lawful. Stay tuned.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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