Washington — Former President Donald Trump’s lawyers lambasted a request by special counsel Jack Smith for a gag order in the federal case involving the 2020 presidential election, claiming in a new filing that prosecutors are seeking to “unlawfully silence” Trump with a proposed order that would violate his First Amendment rights.
Trump’s legal team claimed in the 25-page filing that the request from Smith is too broad and threatens to chill the free speech rights of not only the former president, but of his lawyers, too. They argued that federal prosecutors are seeking to “muzzle” Trump at a time when he has a narrow lead over Mr. Biden in the polls.
“At bottom, the Proposed Gag Order is nothing more than an obvious attempt by the Biden administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls,” Trump’s lawyer Gregory Singer wrote. A CBS News poll of likely voters conducted earlier this month has Trump ahead of the president, 50% to 49%.
Trump’s lawyers criticized the rhetoric from the special counsel and his team, accusing them of issuing an indictment that “read very much like a campaign press release.” They took aim at Smith specifically and claimed he delivered an “incendiary attack” against Trump during a press conference in August, during which the special counsel announced the four federal charges filed against him relating to an alleged effort to stop the transfer of presidential power. The former president has pleaded not guilty.
“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,” lawyers for the former president wrote. “The court should reject this transparent gamesmanship and deny the motion entirely.”
The filing came in response to a request from the special counsel that U.S. District Judge Tanya Chutkan, who is overseeing the case, limit what Trump can say publicly about it. Citing a slew of social media posts from the former president on the platform Truth Social, prosecutors accused Trump of making “inflammatory public statements” that sought to influence potential jurors and intimidate witnesses.
Smith asked Chutkan to issue a “narrowly tailored” order barring Trump from making statements “regarding the identity, testimony, or credibility of prospective witnesses,” and “about any party, witness, attorney, court personnel, or potential jurors that are disparaging and inflammatory, or intimidating.”
But Trump’s lawyers pushed back on the scope of the proposed order sought by prosecutors, in part because they said it would include “disparaging” statements about potential witnesses, which may include at least one — former Vice President Mike Pence — who is running against Trump for the GOP presidential nomination.
They called it “absurd” to suggest the court and prosecution are intimidated by Trump’s comments on social media and noted that proceedings in the case so far have continued without incident or delay. The lawyers also saidthat no potential witness has indicated they would not testify because of Trump’s comments, and instead “appear eager to share their expected testimony with the media and will undoubtedly testify at a potential trial, if called to do so.” Trump’s attorneys specifically mentioned Pence and former Attorney General Bill Barr, noting each has written books about Trump and, given their prior high-ranking government positions, are unlikely to be intimidated by social media postings.
“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.
Trump’s lawyers asked Chutkan to schedule a hearing on the matter. The former president has continued to attack Smith online, calling him “deranged.” He previously has claimed Chutkan is “very biased & unfair,” and accused her of being a “radical Obama hack.”
Since he was charged in August in the federal elections case — one of the four indictments Trump has faced in four different jurisdictions, he has pleaded not guilty to all charges — the former president and his lawyers have argued that his conduct surrounding the 2020 elections was protected by the First Amendment.
During a hearing in August, Chutkan acknowledged Trump’s right to free speech, but said it is “not absolute.” She also reminded the former president’s lawyers that he is subject to the conditions of his release that were imposed at his arraignment, including rules preventing witness intimidation.
Chutkan herself has received at least one violent threat: A Texas woman was arrested in August after she left a voicemail for the judge that said in part, “You are in our sights, we want to kill you.”
In the message, the woman alleged that if Trump were not to be elected president in 2024, “we are coming to kill you,” and “you will be targeted personally, publicly, your family, all of it,” according to a criminal complaint filed in federal court.
The voicemail was left for Chutkan who one day after Trump posted on social media, “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” according to the filing.
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