Special Counsel Jack Smith’s office defended a gag order issued against former President Donald Trump in his 2020 election case Tuesday by arguing that Trump does not have “an unfettered right to try his case in the media.”
Trump’s lawyers wrote last week that District Judge Tanya Chutkan “lacks the authority to muzzle” the former president’s speech in violation of his First Amendment rights and the rights of “tens of millions of Americans to engage in and hear core political speech in the middle of an ongoing presidential campaign.”
Prosecutors pushed back in a 67-page filing Tuesday, explaining that district courts have “an affirmative duty” to prevent trial participants from making statements that are likely to “prejudice” the proceedings.
“There has never been a criminal case in which a court has granted a defendant an unfettered right to try his case in the media, malign the prosecutor and his family, and—after threatening witnesses and others … target specific witnesses with attacks on their character and credibility, calling one a ‘weakling[]’ and a ‘coward[]’ and suggesting that another’s actions warrant the ‘punishment’ of ‘DEATH!’” prosecutors wrote.
Citing the Supreme Court’s 1966 decision in Sheppard v. Maxwell, Smith’s office said that the court can act when a party tries to influence the case “through the use of the meeting hall, the radio, and the newspaper” instead of legal argument.
Prosecutors pointed to a call Chutkan allegedly received the day after one of Trump’s posts — in which he said “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” — where the individual threatened to kill her if Trump is not elected in 2024.
“That episode was part of a pattern, stretching back years, in which people publicly targeted by the defendant are, as a result of the targeting, subject to harassment, threats, and intimidation,” the filings state.
Moreover, prosecutors argued the order leaves Trump free to do what he must do to “run for office while defending himself in court.”
“And the distinctions it draws between criticizing the policies of a political rival or describing the prosecution as politically motivated, on the one hand, and targeting trial participants or their expected trial testimony, on the other, is readily comprehensible,” prosecutors wrote.
Earlier this month, the Court of Appeals for the District of Columbia temporarily paused the gag order pending Trump’s appeal. Oral arguments before a three-judge panel are scheduled for Nov. 20.
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