Former federal prosecutors Francey Hakes and Jay Town told Newsmax on Monday there are many problems with the gag order requested by special counsel Jack Smith in the case against Donald Trump in Washington, D.C., not the least of which is that it's a "tactical mistake."
Further, Smith's request to mute Trump, a former president, presents a First Amendment issue, the pair said on "The Record with Greta Van Susteren."
"It's sort of a 19-page whine by Jack Smith," Town said about the narrow gag order requested by Smith on Sept. 15. "If you wanna indict the most famous person on the planet, you really need to just suck it up."
"But as a prosecutor … I will tell you this. If the defendant wanted to make fun of the … potential jurors in my jurisdiction, I would say, 'Say it louder for the people in the back, President Trump. Tell me how all these potential jurors that are gonna come in and seal your fate, are awful people who'll never give you a fair shake. Say it louder, say it more often,'" Town said. "Instead, Jack Smith wants to shut it down. I just think it's a tactical mistake."
Hakes said Trump's status makes it a "really complicated case."
"When you have someone running for president, who's been president and is campaigning to become president again, you've got a real First Amendment issue in trying to gag him and restrict him from saying anything at all, including about his own case," Hakes said.
If U.S. District Judge Tanya Chutkan issues a gag order, "they'll have someone watching every single minute of every speech and every interview that President Trump gives," Hakes said.
"And we'll see them running back into court frequently because I think we can all pre-agree that President Trump is unlikely to observe the niceties of a gag order in the way that a judge might like. This is gonna be a fight until trial."
Town added it is no coincidence the gag order request came so soon after Trump's legal team made a motion to recuse Chutkan from the case.
"So, this is another way of saying, 'Not only, judge, are you fit to serve in this case but look at all the negative things he's saying about you and your court and fairness of this trial,'" Town said. "So, they came within 48 hours of one another, and that was by design."
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