(Bloomberg) -- Donald Trump accused prosecutors of trying to hamstring his 2024 presidential run by seeking to restrict what he can say about the federal election-obstruction case against him in Washington.
The Justice Department’s request for US District Judge Tanya Chutkan to impose a gag order on the former president was a violation of his free speech rights under the US Constitution, Trump lawyers said Monday in a court filing. They argued the government hadn’t identified specific examples of Trump’s statements that would intimidate witnesses or prevent prosecutors or the judge from performing their duties.
“The proposed gag order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent,” Trump’s lawyers wrote. They said the government’s proposed order would also restrict him from talking about former Vice President Mike Pence, a witness in the case and one of his rivals for the Republican nomination.
Read More: Trump Prosecutor Calls for Partial Gag Order on Ex-President
Special Counsel John “Jack” Smith’s team is allowed to file a response to Trump’s objections by Sept. 30, and Chutkan is expected to rule after that. In the meantime, the judge is also considering Trump’s request that she recuse herself from the case, a move the government opposes.
Prosecutors said they were seeking a limited order, barring Trump and his attorneys from making or “authorizing” public statements that identify witnesses or that feature “disparaging,” “inflammatory,” or “intimidating” rhetoric about parties, witnesses, lawyers, court staff or potential jurors. The proposed order would also prohibit Trump from “causing surrogates” to make those types of statements on his behalf.
Smiths’ team argued that Trump’s statements to date “attacking the citizens of the District of Columbia, the court, prosecutors, and prospective witnesses” threaten “to undermine the integrity of these proceedings.” They focused on the former president’s online posts after he was indicted in August on charges of conspiring to overturn the results of the 2020 presidential election.
Trump’s lawyers argued that the former president had a First Amendment right to criticize the prosecution, that the government failed to present examples of him making a “true threat,” and that concerns that his comments might inspire others to act wasn’t enough to restrain his constitutionally protected speech.
They also said the government’s proposed order was vague and didn’t provide clear boundaries for what type of speech would prejudice the case.
“To expect President Trump and his counsel to make that judgment in real-time, every time he speaks, is utterly intolerable,” his lawyers wrote.
Ahead of Monday’s court brief from his legal team, Trump criticized the government’s request on his Truth Social website — the same social media platform where prosecutors flagged many of the statements at issue — calling it “ridiculous.”
Gag orders are rare and require judges to balance the First Amendment’s sweeping speech protections against the need to seat a jury, protect witnesses, and generally ensure a fair trial.
Chutkan previously had warned Trump and his lawyers against making “inflammatory statements” but hadn’t ordered special restrictions on what he could say.
The judge said at an Aug. 11 hearing that if there were concerns about public commentary tainting the jury pool or intimidating witnesses, there would be more “urgency” to get to a trial “quickly” — a sign she might consider moving up the March 4 trial date, which Trump’s team had already opposed as too soon.
The case is US v. Trump, 23-cr-00257, US District Court, District of Columbia (Washington).
(Updated with a link to the court brief, information about Trump’s response.)
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