Former President Trump vigorously urged a judge Monday to deny a Department of Justice (DOJ) request for a “narrow” gag order limiting how he can talk about witnesses and others involved in his prosecution stemming from the Jan. 6, 2021, attack on the Capitol.
The 25-page brief from Trump’s legal team sounded much like the president himself, boasting of his recent poll numbers and casting the DOJ request as a way to hamper his electoral prospects.
It comes after the Justice Department called some of Trump’s comments intimidating, arguing that his barrage of criticisms of the case threaten the integrity of the process
“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. However, ‘above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,’” Trump’s attorneys wrote in the brief, quoting from another decision.
“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.”
The request from special counsel Jack Smith’s team seeks to bar him from making any disparaging, inflammatory, or intimidating remarks about witnesses, jurors, court personnel, and even prosecutors, all comments it says risk damaging potential jurors’ perception of the case and could deter testimony.
Trump’s attorneys attacked the proposed gag order Monday as “sweepingly broad” and said “many of its terms are undefined.”
The government said the gag order was needed because Trump “has an established practice of issuing inflammatory public statements targeted at individuals or institutions that present an obstacle or challenge to him.”
“The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets,” prosecutors wrote in the filing.
Prosecutors listed a string of examples, some including in the months after the election, where those attacked by Trump on social media then received numerous threats.
They go on to note the same has happened to some of Smith’s team after Trump complained about the indictment.
But Trump’s team pushed back on those arguments, writing that the former president has not intimidated anyone through his social media commentary.
“This claim is meritless. First, it is absurd to suggest the prosecution and the Court are ‘intimidated’ by critical social media posts, let alone to such an extent that it ‘constitute[s] a clear and present danger to the administration of justice,’” Trump’s attorneys wrote in the filing.
“The prosecution does not point to a single prosecutorial or judicial function that has been impaired due to the cited social media posts, or otherwise suggest that it would be unable to fulfill its duties absent the Proposed Gag Order,” they added.
“Similarly, no witness has suggested that he or she will not testify because of anything President Trump has said. To the contrary, witnesses 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 largely argue the government hasn’t met the burden for limiting Trump’s First Amendment rights.
But much of the brief’s arguments are political ones, complaining that President Biden would not face similar restrictions though he has no matters pending before the court and is in no way a party in the case.
And at another point, Trump’s attorneys argue Washington, D.C., is too liberal to be swayed by the former president’s comments.
“The prosecution presents nothing but pretexts, claiming that the Court must muzzle President Trump to ensure that: (1) the prosecution, the Court, and witnesses are not “intimidated” by political criticism; and (2) the District of Columbia citizenry (who voted by a margin of around 95% for Biden in the 2020 election) do not magically transform and become biased in President Trump’s favor,” they write.
Prosecutors made the request asserting that Trump’s comments risk jeopardizing the case, intimidating witnesses and court personnel, while the attacks on the judge and prosecutors could limit the public’s acceptance of the ultimate verdict.
“Since the indictment in this case, the defendant has spread disparaging and inflammatory public posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the Court, prosecutors, and prospective witnesses,” prosecutors wrote.
“Like his previous public disinformation campaign regarding the 2020 presidential election, the defendant’s recent extrajudicial statements are intended to undermine public confidence in an institution—the judicial system—and to undermine confidence in and intimidate individuals—the Court, the jury pool, witnesses, and prosecutors.”
Updated at 10:47 a.m. ET