Great Minds Think Alike, Dept.

Renato Mariotti, former federal prosecutor:

Jack Smith was smart to put Trump’s misconduct in front of the judge.  She is not going to like it, and it certainly won’t make her more inclined to rule in his favor.

But Judge Chutkan would be wise *not* to impose a gag order.  Instead she should move up the trial date. 

Let him explain:

The judge has extraordinary discretion over management of her trial calendar, and her scheduling orders are almost impossible to successfully challenge on appeal.

Trump’s misconduct gives her a reason to move the date up, to reduce the impact of Trump’s misinformation.

Because, you see:

A gag order, by contrast, would be thorny given the First Amendment concerns.  It would be prudent for the judge to sidestep those issues and instead use tools — like her trial calendar — that are less problematic.

A gag order would raise the very First Amendment issues Trump wants to raise.  He can run those through the D.C. Court of Appeals and probably make a bid to the Supremes with that issue, as an interlocutory appeal because he's campaigning for elected office (irreperable injury, IOW).  But the court's calendar?  Trump has a hard time making a good faith showing that moving the trial date earlier is an abuse of discretion by the judge, when she has warned him already about the consequences of his actions, and when he has brought the issue on himself.  Trump is in the position right now of having killed his parents, and would be begging the court for leniency because he's an orphan.

So a gag order would force appeals courts to weigh Constitutional issues.  Moving the trial date because Trump won't shut up, is within the Court's discretion, and a just response where Trump has already had fair warning. At most, it would be an issue on appeal after the trial.

I'm thinking early December would be appropriate.  😈