Yesterday, we discussed the prosecution of accused Russian agent Maria Butina and how prosecutors put out clearly false allegations that she traded sex for favors. Butina’s defense counsel Robert Driscoll called out the government for the clearly baseless allegations spread throughout the media. U.S. District Judge Tanya Chutkan has now responded by gagging counsel, an order that has become all too common in federal cases.I have long criticized imposition of gag orders as a standard pre-trial measure. These orders used to be the exception rather than the rule. They prevent counsel from responding to leaks and baseless accusations, as raised in this case. The government has long used leaks to coerce pleas and destroy targets. While Chutkan chastised the government for its baseless claim, she gave the government what it wanted in gagging Butina’s counsel.

All defense attorneys expect that they must be circumspect in public comments before trial. However, Driscoll was merely responding to the overwhelmingly false accounts being peddled to the press in the interests or his client. Those leaks and the false allegation were already compromising the jury pool. If Driscoll had not responded, it would be doubtful that they would have seen a public statement from the court rejecting the allegation.

The court’s denial of bail was understandable. Chutkan insisted that “I cannot envision a scenario where it’s not possible,” for Butina to walk out of jail, get in a car with diplomatic plates and flee the country. Double negative aside, the risk is a valid reason for holding over Butina for trial.

The government’s baseless claim of a “honey pot” spy operation only added to questions over the strength of its case against Butina. Indeed, as shown with Richard Jewell a decade ago, the Justice Department often seems to take the greatest steps to publicly disgrace people when their evidence is weakest. Then, as in this case, they seek gag orders when defendants actually respond publicly. As in this case, there is no sanction for those prosecutors responsible for such attacks.

I see a value for gag orders in some cases but judges now turn to such orders as the first rather than the last resort.

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