All right, all of you criminal law and First Amendment nerds. . .
The special counsel has filed its opposition to the order to stay the gag order.
If you're saying, "What the heck? I'm lost!" don't worry. I wrote up this nifty explainer to get you all caught up.
So put on your nerd glasses and have a look. A bit later I'll do a reading of the special counsel's filing.
So, confusion: aren't prohibitions against certain activities like skipping town or witness intimidation part of the agreement the court makes with the defendant to allow them release prior to the trial? It seems if Trump doesn't want to agree to behave, he has/had the option to reject that agreement and cool his jets in custody (presumably house arrest with supervision) until the trial date.
What am I missing here?
@Biggles what you are missing is he has not been found guilty of a crime and you are suggesting punishment without conviction.
If I am a suspect for murder - they put me in jail pending trial, even though I have not been found guilty. Maybe there's bail, or maybe I'm held without bail. How is this different?
The custody-until-trial isn't a punishment - it's (apparently in this case) a necessary requirement to prevent the suspect from tampering with the process or fleeing - if I read this right:
https://jlm.law.columbia.edu/files/2017/05/46.-Ch.-34.pdf says:
"Pretrial detention is only supposed to be used to make sure that you
will not flee before trial or pose a danger to other people. It is not supposed to be used to punish or rehabilitate you."
If a suspect is saying things about court personnel that is leading to actual death threats - this would seem to apply.
@Biggles @Teri_Kanefield
The first amendment protects speech, including speech you don't like. There are exceptions, but those are few for good reason. (I highly recommend the "Fire in a Crowded Theater" episode of Make No Law: https://pca.st/episode/aae5877d-1aaf-4bd2-a818-5e75d3beeba8 ).
All defendants are innocent until proven guilty (including the innocent ones!). Prior restraint on their speech (that is, prohibiting them from saying something before they say it) may inhibit their ability to achieve a just outcome...
@Biggles @Teri_Kanefield
I don't believe this judge is corrupt. But I am aware that some are. If a judge can prohibit a defendant from pointing out that judge's corruption, that's a problem.
That's why restraints on speech are extremely limited. And speech protections even apply to people we don't like.
@Biggles @Teri_Kanefield I THINK the answer is that the same debate exists whether he is in custody or not. He retains his 1A rights. And he will be louder there.