James Wolfe’s defense team said the gag order was necessary because of the risk that the president would continue to make comments, as he did after the longtime Senate staffer’s arrest last month. | Jose Luis Magana/AP Photo Judge refuses to gag Trump in case against Senate aide charged in leak probe

A federal judge on Thursday rejected defense lawyers’ request to impose a gag order that would bar President Donald Trump from commenting on the case against their client, a former Senate Intelligence Committee aide charged with repeatedly lying to FBI agents who are conducting a leak investigation.

Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia said attorneys for James Wolfe, a former security director for the Senate Intelligence Committee, failed to show that his right to a fair trial was in imminent danger.


Justice Department attorneys argued that the court had no authority to gag Trump, but the judge said she did not need to wrestle with that issue.

“Even if I could enjoin the president as a party pursuant to the rule, the defendant has not demonstrated any need to do so at this time,” Jackson said after a half-hour hearing. “People say misleading and inaccurate things about court proceedings all the time.”

Wolfe’s defense team said the gag order was necessary because of the risk that Trump would continue to make comments, as he did after the longtime Senate staffer’s arrest last month.

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Speaking to reporters on the South Lawn of the White House at the time, Trump — who has repeatedly railed against government leaks — seemed to celebrate Wolfe’s arrest.

“It’s very interesting that they caught a leaker in a very important — it’s a very important leaker,” he said. “So, it’s very interesting. I’m getting information on it now. Happened last night. It could be a terrific thing.

“I believe strongly in freedom of the press. I’m a big, big believer in freedom of the press, but I’m also a believer in classified information. Has to remain classified. And that includes Comey and his band of thieves who leak classified information all over the place.”

The president was referring to former FBI Director James Comey, whom he fired last year.

Wolfe’s attorneys have repeatedly stressed in court and to the media that their client is not charged with leaking classified information. Rather, he faces three felony counts of making false statements to the FBI about his interactions with reporters and his denial that he disclosed nonpublic committee information to members of the press.

“The president’s comments certainly clearly relate to Mr. Wolfe and indicate that he is guilty of leaking,” Wolfe’s lawyer Ben Klubes told the judge. “This is the president of the United States, who is a party to this case. … I think it is remarkable that the president of the United States has pronounced our client guilty of a criminal offense.”

However, Jackson, an appointee of President Barack Obama, struck a skeptical tone about the defense request from the outset of Thursday’s hearing in Washington. She indicated that any concerns about a fair trial could be addressed through the court’s normal procedures for vetting jurors.

“Just because people make comments, even people in high places, doesn’t mean you even have the potential risk of harm,” the judge said.

Klubes said presidential remarks were uniquely damaging and justified a request the defense acknowledged was unprecedented.

“It is fundamentally different when you have the president of the United States, as opposed to a commentator on CNN,” the defense lawyer said.

The defense said telling Trump and Justice Department officials not to discuss the case publicly wouldn’t be much of an imposition, since officials rarely make comments once a prosecution is underway, but Jackson made it plain she had a different view.

“The impact on the government should be, frankly, nil,” Klubes said.

“I disagree,” the judge shot back. “It seems like a big burden to me with respect to the people who would be restricted by it.”

Jackson suggested that Wolfe’s defense is free to rebut any falsehoods in the media, but his defense team declined to comment to reporters after the hearing. Wolfe has pleaded not guilty to the charges. His attorneys have previously denounced the prosecution as “unfair and unjustified” and have insisted that he did not disclose any confidential information.

While the request for a gag order against the president does appear unprecedented, judges have sometimes objected to officials at high levels of the Justice Department commenting on a criminal case.

In 2011, then-Attorney General Eric Holder found himself in hot water over a speech in which he denied that entrapment took place in a case over an attempted terrorist bombing of a Christmas tree lighting event in Portland, Oregon. The judge handling the case said Holder’s comments appeared to violate Justice Department guidelines, but the court turned down a defense request for a gag order.

Obama and Trump also faced criticism and caused legal complications by commenting on pending cases in the military justice system, but judges there tend to be particularly sensitive to such remarks since the president’s role as commander in chief gives him direct authority over judges and military personnel who serve on courts-martial.

No trial date has been set in Wolfe’s case. Jackson ordered both sides to return to court Aug. 23 for another hearing on the matter.