Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump on Aug. 1, at an office of the Department of Justice in Washington. A.J. Scott Applewhite/Associated Press
Attorneys for former president Donald Trump on Monday blasted U.S. prosecutors’ request for a narrow gag order that would bar him from attacking participants in the criminal case charging him with conspiring to overturn the 2020 presidential election, claiming he must be free to campaign for the Republican nomination in 2024.
After the government request was made public Sept. 15, Trump called special counsel Jack Smith “a deranged person” who “wants to take away my rights under the First Amendment.” His attorneys struck a similar if more restrained tone in a 25-page court filing in Washington, D.C., saying it is prosecutors who are using “inflammatory rhetoric” against Trump, and the Biden administration that is trying to “silence its most prominent political opponent.”
“Following these efforts to poison President Trump’s defense, the prosecution now asks the court to take the extraordinary step of stripping President Trump of his First Amendment freedoms during the most important months of his campaign against President Biden,” attorney Gregory Singer wrote, adding, “The court should reject this transparent gamesmanship.”
The response joins a battle that promises to be a recurring feature of Trump’s multiple state and federal criminal cases and that highlights challenges facing prosecutors and judges in the historic attempts to prosecute a former American president and active candidate.
Prosecutors in Smith’s office on Sept. 5 asked U.S. District Judge Tanya S. Chutkan to stop Trump from spreading prejudicial pretrial publicity. They warned that he was charged with sowing lies that prompted violence and undermined democracy after the 2020 election, and suggested that he appears to be doing so again, this time targeting the judicial system.
Trump argues that he is the victim of political persecution, claiming the Constitution should protect his political speech and candidacy.
Prosecutors urged Chutkan to bar Trump from doing three things: attacking participants in the case, discussing potential witnesses’ testimony or credibility beyond what his defense says in court or in filings, and surveying Washington, D.C., residents in the potential jury pool without prior court approval of questions to prevent the risk of bias.
Prosecutors argued that just as Trump knowingly spouted lies that the 2020 election had been stolen to subvert its legitimate results and intimidate election workers and officials, the former president now is attempting to undermine confidence in the judicial system by pumping out near-daily “disparaging and inflammatory attacks” about potential jurors, witnesses, prosecutors and the judge.
Senior assistant special counsels Molly Gaston and Thomas Windom cited the arrest of a Texas woman charged with making death threats against Chutkan; the lodging of “multiple threats” against Smith; and “intimidating communications” directed at a Justice Department supervisor, Jay Bratt. Prosecutors said Trump has repeatedly falsely accused Bratt of tipping off the White House before Trump’s June indictment on charges of mishandling classified documents in Florida.
The government said jurors serving in trials of Jan. 6, 2021, Capitol attack defendants in Washington, D.C., also have expressed fears of being publicly identified and are subjected to threats and harassment fueled by Trump’s statements.
“The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets,” Gaston wrote. “The defendant continues these attacks on individuals precisely because he knows that in doing so, he is able to roil the public and marshal and prompt his supporters.”
But Trump’s defense rejected claims that he was intimidating Washington, D.C., residents or creating a “substantial likelihood of material prejudice” that would prevent a fair trial by an impartial jury, as barred under court rules. Days after prosecutors sought the “limited” restrictions on Trump, his attorneys asked for Chutkan to recuse herself from his case, arguing that her own statements about Jan. 6 made her appear biased against him.
Trump himself has gone further, calling Chutkan “a biased Trump Hating judge” and “a fraud dressed up as a judge in Washington, D.C. who is a radical Obama hack.”
In Monday’s filing, Trump’s defense said criticizing the courts and the government is what the First Amendment protects, particularly amid a presidential election campaign.
“The prosecution would silence President Trump, amid a political campaign where his right to criticize the government is at its zenith, all to avoid a public rebuke of this prosecution,” Singer wrote. “The prosecution may not like President’s Trump’s entirely valid criticisms, but neither it nor this Court are the filter for what the public may hear.”
They also claimed that Trump “has never called for any improper or unlawful action,” nor “intimidated” or “incited” anyone to cause harm, based on the courts’ legal definition of inciting imminent lawless action and the number of the government’s witnesses. Instead, they argued that Trump and his defenders have been subjected to equal vitriol by their opponents, and that if anything, the jury pool in Washington, D.C., that voted for Trump’s opponent 95 percent to 5 percent in 2020 was biased against Trump.
“The prosecution offers no evidence of any causal connection between his speech and the alleged unlawful acts of others to support this meritless claim,” Trump’s defense wrote, adding, “the prosecution and its media allies represent a far greater threat of prejudice to the venire [jury pool] than anything President Trump has or will say – particularly, in the District of Columbia.”
Trump’s federal election obstruction case is the first in which prosecutors have sought to restrict Trump’s public statements. While such orders are not unusual in criminal cases, the selection of Washington, D.C., as the forum for the first request indicates prosecutors are hoping to make it a testing ground of the core constitutional questions in play.
Judges typically keep close tabs on what criminal defendants say ahead of trial, to ensure they do not intimidate witnesses or bias potential jurors. The threat of potential fines or jail time for violating a gag order keeps most defendants in line, but treating Trump like other defendants runs headfirst into the reality that he is a political candidate who holds a powerful bully pulpit that has made him an overwhelming front-runner for the GOP 2024 presidential nomination.
Trump has pleaded not guilty in four pending criminal cases. In addition to the federal cases in Washington, D.C., and Florida, Trump is separately charged in state court in Georgia with attempting to obstruct the election results in that state, and in New York with falsifying business records in connection with hush money payments to an adult film actress during the 2016 presidential campaign.
But the question of whether Trump is best held accountable at the ballot box or by fellow citizens in a jury box is not limited to his criminal cases, as courts grapple with Trump’s fight to turn the focus from his conduct to that of his legal and political adversaries.
On Friday, a state judge in Denver issued a protective order limiting statements by Trump and other parties in the case in a lawsuit that seeks to block him from the presidential ballot next year on the grounds that he is ineligible for office under the U.S. Constitution’s 14th amendment.
In her order, District Judge Sarah B. Wallace prohibited all parties or their lawyers from actions that could be construed as threatening, intimidating or harassing or that could be construed as attempting to coerce other parties or witnesses in the case or cause them to fear for their safety.
At issue in the Colorado case is a line in the 14th Amendment, ratified three years after the Civil War, to block from office any public official who had “engaged in insurrection or rebellion” – intended to prevent traitorous former Confederates from regaining power.
Advocacy groups and individual voters in at least a dozen states have filed or explored filing lawsuits to block Trump from state ballots next year on the grounds that he participated in rebellion with his role in the Jan. 6, 2021, attack on the U.S. Capitol. Lawyers on both sides have predicted that the dispute may ultimately be resolved by the Supreme Court. Wallace, the Colorado judge, also set a trial date of Oct. 30 in the case.
Send questions/comments to the editors.
