Bannon`s War Room
Episode 4991: The Trial For Charlie Kirks Assassin; Massive Defeat In Indiana
12 Dec 2025
Chapter 1: What are the rules of professional conduct for prosecutors?
of the rules of professional conduct that deal specifically with requirements for prosecutors.
This is the war room requirements for Provo, Utah, debating the Charlie Kirk assassination. We're going to follow this for a while.
Investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor. So in other words, the prosecution team. And there's no rule or...
Chapter 2: What is the significance of the prosecution team in the Charlie Kirk assassination trial?
case law or statute that expands the prosecution's duties beyond that group, the prosecution team. So with respect to clarity, we're seeking clarity as to what exactly does the court mean by witnesses. And we think the court just means the prosecution team because if that term stretches beyond just the prosecution team, then the order is written
we don't believe is a valid and lawful order because it would result in a prior restraint on certain speech and at the very least would have a chilling effect on that speech. If the prosecution agrees that we have an ethical duty to take reasonable measures to make sure that those who are identified with the prosecution team
are alerted to the requirements of the court's order and to make sure that they do not make a statement that the prosecutors themselves would not be able to make a public statement. But if the order extends beyond that, then we have concerns because a prior restraint is an order that forbids certain communications in advance of the time that they are to occur.
as the court of appeals has recognized the Utah court of appeals has recognized in state versus LM and widespread publicity in a case does not itself justify a prior restraint. The, as, um, the United States Supreme court is recognized in Nebraska press association there. There's no justification for a prior restraint unless it's clear that the, the further publicity,
unchecked would so distort the views of potential jurors that you couldn't find 12 jurors who could be fair and impartial. That's the high standard that applies in this case. And so in order to apply a prior restraint to persons beyond the prosecution team, the court would need to engage in a very detailed and demanding analysis. The court would have to make a factual finding of necessity
that the speech that would be restrained poses a risk of material prejudice to the ongoing judicial proceedings. The court would need to make findings that there are no less restrictive measures and that the prohibitions are likely to prevent the potential prejudice and that whatever prohibitions this court decides on are very narrowly tailored.
And as the state has explained, the Spencer versus State case from the Arkansas Supreme Court that just issued earlier this year is very helpful, I think, on this issue in explaining the analysis that applies to various different people that might be associated with a criminal case. You have attorneys. That category of trial participants certainly
the court has the highest degree of ability to be able to restrain the speech of attorneys. And in fact, as I've expressed, the ethical rules require that. But when it comes to trial participants, like witnesses, the standards are more demanding as far as restricting the speech of trial participants.
Spencer case pointed out, non-attorney trial participants, the court can impose a restraint on their speech only to the extent that the court first finds that any speech by those non-attorney trial participants poses a serious and imminent threat of material prejudice to the ongoing proceeding. And I think the court also needs to note that there are
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Chapter 3: How does the court define 'witnesses' in the context of this case?
in speaking than others. And so I think the court needs to take that into consideration if this order is meant to apply beyond just the prosecution team. And then finally, as far as making the order, so we need a clear order, we need a lawful order, and then we need an order that the state can actually comply with.
And the state recognizes that there are serious sanctions that this court can impose. for violations of a court order, as we've just seen. And so we want to avoid these. We want to avoid litigation over whether there's been a violation of the order. And as it stands right now, we don't believe that there will be any issues if the court limits the term witnesses to just the prosecution team.
We can comply with that order. It gets more difficult for the state if the term witnesses then applies even broader at this stage of the litigation for the state to be able to comply with that order, depending on how the court clarifies what witnesses mean. Does the court have any questions for the state? No, thank you, Mr. Dollar. Mr. Novak.
I'm going to try to be brief because our views on the propriety of the court's order were set forth in a publicly filed document, which of course the court has reviewed. And the first thing that I want to say is that the order that the court issued is not a prior restraint on any
member of the public, and it's certainly not, I think as the state's motion suggested, some sort of a prior restraint on the press. This has nothing to do with the press. The order, as we noted in our papers, is directed at the conduct of and the court's expectations for counsel. So even if, under that order,
that the court issued, somebody who we could all agree is a witness within the court's definition of that, made public statements which implicated Mr. Robinson's fair trial rights. The potential sanction is on the party who had a duty to make a reasonable effort to notify witnesses that they should not be doing so.
If I represented a witness who was accused of saying too much publicly, the first thing that I would tell this court is the order isn't directed at the witness. The order is directed at the counsel for the parties. There may in the future be some theoretical situation where the court issues orders that control the statements or conduct of specific people.
But this, or other than counsel, but this order is directed at counsel. And we have no, meaning Mr. Robinson's defense counsel, have no problem complying with the order. And we also think that we understand what a witness is when the court uses that term. So it is our view that the court's order is not overbroad, it's not vague, doesn't put
the state or the state's attorneys in some untenable position. And I think it's a little bit, It's a little too simple to say witnesses are either everybody under the sun or people who are under subpoena at the last second. Because counsel have not only the training but a duty to figure out along the way who the potential witnesses are and to notify those people.
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Chapter 4: What are the ethical duties of the prosecution team regarding public statements?
And that's why in our papers we refer to it as a... potential lay witness. Because we believe that the court intended it to go beyond members of the prosecution team, which are law enforcement officers, retained experts, retained consultants. And we don't believe that that creates an enforcement problem. We don't think it creates a compliance problem.
We noted in our papers and I'll emphasize here again that the court's order actually places responsibilities on defense counsel that the rules don't. The rules have special guidelines for the prosecution and the court has expanded that to include the defense and we don't have a problem with that. I also think that
the standard that the state is suggesting for when a potential lay witness, as we've defined that in our papers, may make public statements that violate the court's order. The best standard is actually the one that we believe the court should look to, which is the standard set by the 10th Circuit. Because as the state points out, it may be that there isn't any Utah law on this issue.
So it seems to me that the closest source of authority on this constitutional question is going to be the 10th Circuit. And that's the case United States versus Tijerina. And I'll spell it. It's T-I-J-E-R-I-N-A.
412 fed second 661 10th Circuit 1969 where the court says that The constitutional balance between the First Amendment rights of a non-attorney participant and the defendants right to a fair trial are properly balanced where extrajudicial statements present a reasonable likelihood of of prejudicing a fair trial.
That is a more protective standard than that which appears in Rule 3.6, and we think it's the appropriate standard which should be applied here.
And that's part of, as we've told the court before, a motion that we will bring because we actually think that while the court's order is wholly appropriate, it's not vague, it's not over broad, it's not a prior restraint, and it doesn't create a lack of clarity for the state, we would like it to be a little bit broader in other areas.
especially concerning the standard to be applied and the definition of what is the prosecution team, but that's not germane to hear. So we think that while we understand the state's concern, we think that their motion should be denied.
I think at the last hearing, the court actually clarified verbally from the bench what it meant by a witness, and I think that's pretty close to what we described in our papers as a potential lay witness. So I feel like if I say anything more, I'm going to be reiterating again what's already in our papers.
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Chapter 5: What concerns arise from prior restraints on speech in legal proceedings?
If I've muddled it, I'm sure the court will tell me and I'll clarify it. I hope I haven't.
Thank you, Mr. Novak.
Okay, thank you.
All right, and we'll turn to the last matter. Anything further, counsel? Yes, thank you, Your Honor. I do want to point out that the court's order, as it's written, does impose limitations on speech. And the issue here is whose speech? Is it just the prosecution team members, or does it extend beyond that? And limitations on speech are a prior restraint.
The court's order says that, if you look at page two of the order, it specifically talks about lawyers that lawyers cannot make a statement that would violate Rule 3.6 and need to inform witnesses that they cannot make similar statements, and then requires the parties to inform lawyers, excuse me, I'll just read it.
Lawyers participating in the investigation or litigation of this case shall inform all witnesses, and then the list that I read, about the prohibitions contained in this order. So the order is prohibiting speech. And because if it extends beyond the prosecution team, it needs to have the findings that are required for that kind of prohibition on speech. That's what we're asking the court to do.
Thank you, Mr. Ballard. Thank you. All right. Let's turn to the final matter before this court, the motion for limited intervention and request for notice of motions to close, seal, or reclassify. And I'll hear from the parties on that.
Thank you, Your Honor. David Reimann representing the news media. Mr. Judd and I represent different groups of clients, so I'm going to invite him if I miss anything to weigh in after I'm done. My intent, the issues are basically the same, so my intent is to address them for all of the interveners at once, and I'll be very brief. We have only ever sought, in this case, limited party status.
That is what we do in every high profile case that involves these type of closure issues. We are not seeking to be parties for all purposes. We are just seeking to be parties for the purpose of showing up and being hurt, which we unquestionably have a right to do. We unquestionably have standing. That is settled law in Utah.
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Chapter 6: How does the Spencer case influence the court's analysis of trial participants?
They don't want individuals using rule 24 of the rules of civil procedure because it's too expansive. It's about broad. entry into a case for many purposes. In the instances where our courts have allowed intervention into civil cases, and I want to be very clear here, the case law is in the civil arena. There are very few instances where we're dealing with this in a criminal case on appeal.
So we're a little bit in the dark, and we're asking this court to kind of wade through and make a decision that potentially hasn't been made before. But I would ask the court to be very clear, no matter what it does, on what the media can and can't do in this case.
And it sounds to me like the media has somewhat conceded that their role in this case is under Rule 4-202.04, and their role is to have a voice regarding closure, which has already happened today and will surely happen again. We have no objection to that. And to be clear, we're not objecting to the court's order about notice. We will provide notice. We will follow the court's order.
We have no problem with it, but we do want this court to make the procedure very crystal clear. We want timeframes. We want Orders saying this is when you need to respond so that we don't end up with filings like we did this week, very shortly before the hearing, that we have to rush to respond to. We're all attorneys. We all know that these things happen from time to time.
And we're not unreasonable folks. If they reach out to us, we will grant reasonable requests for extension, just so everyone is aware. But there was no communication. So I wanted... very, very clear what they can and can't do. It's less about semantics. This isn't about semantics. It's about substance. What are they allowed to do?
If this court wants to call them a limited purpose party, that has to be, well, it's so you can exercise your rights under 4-202.04. And in doing so, this is what you need to do. That's what we're asking the court to do. And I also have some practical concerns that maybe need to be addressed with the court's clerk. For example, are we adding all 23 media entities to the court docket?
Will they have access to all of the filings? I have had instances in the past where unfortunately Parties have been added to a case and still receive documents that are intended to be private or non-public. I'm very concerned about that.
So I think it would be appropriate if they are going to be added to the docket that it be reasonable, perhaps just the two entities that are requesting, the two conglomerate entities that are requesting. and that there be an order from the court saying if they receive something that they shouldn't have, they notify us and the court immediately, and they delete it. They don't review it.
At a minimum, I think that's necessary. But I also think it would be reasonable for this court not to put them on the docket for that very same reason. So we don't think that they should have permanent status in this case. We don't dispute... that they are going to be here.
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