By Jack Phillips
Former President Donald Trump’s legal team said they oppose a request from the special counsel’s office to place a gag order in the federal election case against the former commander in chief.
On Monday, his attorneys made a 25-page filing (pdf) that argued President Trump’s criticism against special counsel Jack Smith, U.S. District Judge Tanya Chutkan, and others are covered under the Constitution’s First Amendment. His public comments, they contended, are not actual threats or incitement of attacks.
Earlier in September, Mr. Smith asked a federal judge in Washington to implement a “narrowly tailored” gag order that prevents the former president from making public comments on the case, with prosecutors arguing that such remarks could “present a serious and substantial danger of prejudicing” the case. They cited his criticism about Judge Chutkan, an Obama appointee, as well as possible witnesses such as Vice President Mike Pence.
But President Trump’s lawyers said they oppose the move by saying it would imperil his right to free speech, noting that he is a 2024 presidential candidate. Polls show that the former president is leading all other Republican candidates by a wide margin.
“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,” their filing said. “The Court should reject this transparent gamesmanship and deny the motion entirely.”
The lawyers added that federal prosecutors “may not like President Trump’s entirely valid criticisms” but “neither it nor this court are the filter for what the public may hear.”
Gag Order Revealed
Last week, Judge Chutkan unsealed filings that showed the government’s request for the gag order. Prosecutors said, in part, that the former president is undermining their prosecution by “disparaging and inflammatory attacks” on individuals connected to the case.
“The defendant’s past conduct, including conduct that has taken place after and as a direct result of the indictment in this case, amply demonstrates the need for this order,” prosecutors wrote, claiming that prior comments made President Trump have resulted in the harassment of potential witnesses. They cited his criticism of former cybersecurity aide Chris Krebs, a Georgia election worker, and former Georgia Lt. Gov. Geoff Duncan.
On his Truth Social network, the former president reacted to the gag order request by noting that he’s campaigning for president “against an incompetent person who has WEAPONIZED the DOJ & FBI to go after his Political Opponent,” asking: “I am not allowed to comment?” He added, “They Leak, Lie, & Sue, & they won’t allow me to SPEAK?”
His lawyers also said that his team shouldn’t be required to ask the court for permission before carrying out public opinion polling about the case before it goes to trial in March 2023. They requested that the court schedule a hearing as soon as possible.
“The prosecution in this case already knows the population of Washington D.C. and knows that it does not favor President Trump,” the Trump defense team wrote. “Any restrictions on pretrial polling would only work as a further disadvantage to the defense, which has the right to prepare for trial without prosecutorial interference.”
The former president’s legal team requested that the court schedule a hearing “at the first opportunity.”
In last week’s filing, Mr. Smith’s team also complained about President Trump’s suggestion that a Washington trial will include a largely Democratic jury pool.
“No way I can get a fair trial, or even close to a fair trial, in Washington, D.C.,” he wrote on Truth Social in August. “I am calling for a federal takeover of this filthy and crime-ridden embarrassment to our nation. … The federal takeover is very unpopular with potential area jurors, but necessary for greatness, & for all the world to see!”
The special counsel’s office has not publicly responded to President Trump’s latest filing. Mr. Smith’s team has until Saturday to respond before a judge will potentially set oral arguments on the issue.
Concerns About Judge
President Trump was indicted in August on four felony counts for allegedly attempting to intervene in the counting of votes and block the certification of the 2020 election.
It is one of four criminal cases he faces. He has pleaded not guilty to all charges.
Judge Chutkan previously warned President Trump against making statements that could threaten witnesses or taint the jury pool. As a condition of his release, he also agreed not to make threats against those involved in the case.
Earlier this week, the former president filed a motion asking the judge to recuse herself from the case, saying that her prior statements about some defendants in previous Jan. 6 cases reveal bias. Mr. Smith’s team has said in response that there is no valid reason to have the judge removed from the case.
Judge Chutkan last month set a trial date of March 4 for the federal case in Washington. That comes one day before “Super Tuesday,” a potentially decisive date in the Republican presidential race, when several states from Maine to California will hold their nominating contests.
Reuters contributed to this report.
