Betsy McCaughey: DOJ Attacks Defendants’ Rights—by muzzling them with gag orders, as in the cases of former President Donald Trump. (Opinion)
Day by day, your right to speak freely is being robbed by the Biden administration. This time, Team Biden wants to gag defendants from criticizing government prosecutors.
That’s how courts are run in countries like Pakistan, Russia, and North Korea.
Anyone can fall into the government’s crosshairs. Imagine being prosecuted and being unable to speak out, proclaim your innocence and show why the case against you is unfair.
On August 4, special prosecutor Jack Smith asked the court for an order to gag former President Donald Trump from discussing the evidence the government plans to use against him or even criticizing the government’s lawyers. Prosecutors are required to show the defendant all evidence that will be presented in the trial, but Smith is refusing to do so until Trump is gagged.
The judge, Tanya Chutkan, gave Trump’s lawyers only until August 7 at 5 p.m. to respond to this request, asking them to “redline” any objections to the order. That’s alarming.
The entire request is contrary to a defendant’s rights to free speech and a public, impartial trial. Unfortunately, Trump’s legal team quibbled around the edges, rather than attacking the major constitutional issue.
No one questions that Trump is a loudmouth. On Aug. 5 at a GOP dinner in South Carolina, the former president told the crowd that Smith is “deranged” and a “sick man.”
Trump’s entitled to his opinion. After all, Smith’s calling him a criminal. If the government were trying to lock you up for the rest of your life, you’d have a lot to say, too. No matter what you think of Trump, you should be alarmed by what Smith is trying to do.
Trying to muzzle any defendant goes contrary to what the Bill of Rights and two centuries of American law stand for: putting the rights of the defendant ahead of any other considerations.
In 1986, the Supreme Court ruled in Press-Enterprise Co. v. Superior Court of California that the Constitution guarantees not only that trials are public but also that pretrial proceedings are open to the public, except in the rare circumstance that nondisclosure is needed to protect the defendant.
One of those rare circumstances is the upcoming trial of accused killer Bryan Kohberger. The court has limited what attorneys and the families of the victims can say to the press to increase the likelihood that an impartial jury can be selected.
That gag order is all about protecting the defendant. Smith is trying to do the opposite: gag the defendant to protect the government’s case — and the government’s pretrial public relations campaign.
That’s an outrage against voters. Trump is running for president, and if the trial doesn’t take place before the election and Trump is muzzled, the public gets only one side of the story: the prosecution’s version.
Smith is already demagoguing, telling the public he’s holding Trump accountable for the rioting at the Capitol on Jan. 6, 2021, when in fact the indictment has nothing to do with the violence at the Capitol that day.
Whether in court or in the court of public opinion, both sides have to be heard to get at the truth. That’s the American way.
It’s especially vital with a prosecutor as sneaky and unprincipled as Smith. Again and again, Smith has targeted politicians, stretching and twisting the meaning of the law to bring charges against them, and then failing to make the charges stick.
He indicted former presidential aspirant John Edwards in 2011 for taking illegal campaign contributions, but a jury didn’t buy it.
Smith prosecuted Sen. Robert Menendez (D-N.J.) on public corruption charges, but that case ended in 2017 in a mistrial, too.
The overzealous prosecutor also went after former Virginia Gov. Robert McDonnell. Smith won a conviction, but in 2016, it was overturned by a unanimous Supreme Court, which chastised Smith for the “Government’s boundless interpretation of the federal bribery statute.” The justices warned the nation about “the uncontrolled power of criminal prosecutors.”
Attorney General Merrick Garland should have considered Smith’s shameful record before appointing him special prosecutor to investigate possible wrongdoing by Trump. But then again, Garland likely wanted a hitman.
Tell Judge Chutkan to deny Smith’s un-American gag order. The defendant and the public deserve a fair trial. That’s what the Constitution guarantees.
Betsy McCaughey is a former lieutenant governor of New York and chairman of the Committee to Reduce Infection Deaths. Follow her on Twitter @Betsy_McCaughey.
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