MIAMI – A judge on Tuesday barred Donald Trump from talking about his classified documents case with co-defendant and personal valet Walt Nauta – and potentially dozens of witnesses in the first-ever federal prosecution of a former president.
Trump agreed to the order by magistrate Judge Jonathan Goodman as a condition of his release from custody on his own recognizance during the hushed hearing on the 13th floor of the federal courthouse here. It was a step down from an even stricter proposed ban – a first win for Trump but also a significant victory for special counsel Jack Smith.
It's a compromise, legal analysts said, that will be all but impossible to enforce.
The agreement came moments after Trump – sullen, arms crossed and slumped slightly forward in his chair – entered a not guilty plea to 37 counts of violating federal laws regarding the mishandling of classified material.
Within a few hours, the former president broke his vow, or came dangerously close to it – according to some legal analysts – during a caustic speech to supporters at his Bedminster estate and golf course.
Trump trashed Smith and the prosecution team, railing against what he called a politically motivated witch hunt and seeking to undermine the foundations of the case against him. His prosecution, Trump said, is “one of the most outrageous and vicious legal theories ever put forward in an American court of law.”
In the audience, and no doubt also watching on TV, were some of the same potential witnesses with whom Trump had promised not to discuss the case.
How do you define 'speaking to'?
Trump may not have been speaking directly to Nauta, who remained with Trump after his arraignment as part of his job as the former president’s “body man.” And he wasn’t specifically talking to potential case witnesses, which his lawyers said Tuesday will include Trump’s Secret Service protective detail, some of his current and former lawyers, and an array of staff at his Mar-a-Lago and Bedminster properties.
But Trump’s unique position in American history – a former president campaigning for the White House while under indictment for federal crimes – suggests that the judge’s order is going to be tested in the extreme in the coming months.
That is especially the case, legal analysts say, because of the vague nature of Goodman’s order and Trump’s history of defying legal and political attempts to constrain him.
“Regarding the modest limitation on Trump and Nauta not to discuss the case with each other, it’s impossible to enforce and is therefore borderline meaningless,” said career federal prosecutor Glenn Kirschner.
Defense lawyer Mark Zaid said the order, and Trump’s speech within hours of it, illustrate “just one of any number of atypical circumstances that will plague this case.”
“Few defendants would have an opportunity to speak to a co-defendant or witness in a manner that Trump will have available,” said Zaid, who has represented many clients who have faced intimidation, or worse, for being investigation or trial witnesses.
“Should Trump make comments at an event attended by Nauta, or perhaps through television or social media, and it appears that very clear messages, if not instructions, are being made that would be deemed inappropriate if the two were meeting privately, I would expect prosecutors to revisit this issue before the judge for further clarification or expansion of the scope of the gag order.”
What happened inside the courtroom
By the time the select few reporters were allowed into Courtroom 13-3 of the Wilkie D. Ferguson Jr. U.S. Courthouse, Trump was already seated – sandwiched between lawyers Todd Blanche and Chris Kise. To their right were Nauta and his lawyer, Stanley Woodward.
Nauta, who didn’t enter a plea Tuesday, is charged with conspiring with Trump to obstruct a federal investigation into Trump’s handling of dozens of top-secret documents he took with him when leaving office.
The government did not object to Trump being released on his own recognizance without bail. Authorities didn’t take a mugshot of him either, given his public stature, and he whizzed through the digital fingerprinting and other court processing procedures.
But the question of with whom Trump could – and could not – talk became the most substantive and contentious part of the hearing.
Initially, the judge weighed the option of not allowing Trump to contact Nauta or potential key witnesses at all.
“Usually the condition is no contact whatsoever,” Goodman said.
That would have meant Trump could talk to Nauta and potential witnesses in the case only through their attorneys. Blanche objected, saying it would be logistically difficult because Nauta’s job is to follow Trump around all day, which requires frequent interaction. Also, he said, so many of the potential witnesses have been, and remain, close to Trump and interact with him daily.
Many “worked for President Trump for years and rely on him for their livelihood,” Blanche said. The facts of the case involve “everything in President Trump’s life.”
One of the witnesses, Blanche noted, “is still the (former) president’s lawyer.”
After an extended back and forth, Goodman said Trump could interact with Nauta and everyone else in his various orbits, just not about the facts of the case.
“The elephant in the room,” one of the prosecutors said, “is that we don’t have a list yet” of witnesses who would fall under the judge’s order. Goodman instructed the Justice Department to provide one as soon as possible.
He provided no guidance, however, on how such an order could play out in real life, especially as Trump seeks to make undermining the case a centerpiece of his campaign.
After a few glitches involving incomplete signatures, the bond paperwork was completed at just after 3:30 p.m. “Third time’s the charm,” Goodman said.
Trump back on the trail – with co-defendant and witnesses
Within minutes of his release from custody, Trump was back on the campaign trail, with Nauta at his side, during a surprise stop at a famous Miami restaurant filled with supporters. By nightfall he had flown to New Jersey for a fundraiser and, according to news reports, a more intimate dinner with top donors.
Tom Fitton, one of Trump’s most vocal supporters, said the judge’s order was so vague as to virtually guarantee a confrontation between Trump, the Justice Department and the judge who ultimately oversees the case.
“When Trump starts talking about the case, which he has every right to do on the campaign trail, what are Nauta and all of the other people around Trump every day supposed to do? Cover their ears so they can’t hear it?” asked Fitton, president of the conservative public interest group Judicial Watch.
“What is he going to say, from the podium or at a campaign or even smaller donor event? 'I’d love to talk about this case but I’ve been advised by counsel that I can't talk about the biggest case in American history?' Does he need a list of who's attending before he can decide whether he can talk about it?
“This issue goes beyond a limited list of witnesses,” said Fitton, who attended a private dinner with Trump the night before the arraignment. “The judge should just remind the defendant (Trump) that you can't compromise the case by trying to unlawfully influence a witness's testimony. But it obviously impairs his candidacy to not be able to talk about the case.”
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