Special counsel Jack Smith filed court papers Tuesday seeking to uphold a gag order in former President Donald Trump’s 2020 election case, claiming that the former president’s public criticism of the prosecutor is reason to keep it intact.
Last week, an appeals court in Washington suspended the gag order, which was handed down earlier by U.S. District Judge Tanya Chutkan. The former president had appealed the restrictions that were imposed by the judge, arguing they violate his First Amendment right to free speech.
The filing makes multiple references to President Trump’s posts on Truth Social and elsewhere, saying that such comments necessitate the need for the gag order to be re-imposed. It argued further that the former commander-in-chief “has persistently used social media to make prejudicial comments about the case and its participants.
“In particular, the Order leaves the defendant free to do virtually everything that he has claimed, throughout the litigation, that he must be able to do to run for office while defending himself in court,” federal prosecutors wrote Tuesday. “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. The Order should be affirmed.”
Judge Chutkan’s order had barred the former president from making public statements critical of prosecutors, court staff, and potential witnesses in the election case. He can still criticize the Department of Justice, the federal government, and the city of Washington.
The D.C. Court of Appeals lifted the lower court’s gag order while it hears the case. The court is scheduled to hear oral arguments on the gag order on Nov. 20.
When it handed down the order in early November, the appeals court wrote that the temporary pause “should not be construed in any way as a ruling on the merits” of the former president’s bid to have it lifted entirely.
Days before that, Judge Chutkan, who was appointed to the bench by former President Barack Obama had reimposed the gag order after prosecutors claimed President Trump made social media comments about his former chief of staff Mark Meadows.
What Trump Said
President Trump has argued that any restriction on his public speech runs afoul of the Constitution, namely as he is the leading GOP presidential candidate by a long shot. Judge Chutkan’s order, his team has said, is too vague and tantamount to overreach.“President Trump’s viewpoint and modes of expression resonate powerfully with tens of millions of Americans,” the Trump legal team wrote in his petition to the appeals court. “The prosecution’s request for a Gag Order bristles with hostility to President Trump’s viewpoint and his relentless criticism of the government—including of the prosecution itself.”
The lawyer added that the order “embodies this unconstitutional hostility to President Trump’s viewpoint” and “should be immediately stayed.”
And his lawyers say they will go to the U.S. Supreme Court, if need be, to fight what they say are unconstitutional restrictions on his political speech. The defense has said prosecutors have provided no evidence that potential witnesses or anyone else felt intimidated by the former president’s social media posts.
“If the Court denies this motion, President Trump requests that the Court extend its administrative stay for seven days to allow him to seek relief from the U.S. Supreme Court,” his attorneys also wrote.
However, there is no guarantee that the U.S. Supreme Court would take up the matter as the court receives thousands of cases per term.
Appeals court Judges Brad Garcia, Patricia Millett, and Cornelia Pillard will hear the case.
Jude Garcia is a former Justice Department official who clerked for Supreme Court Justice Elena Kagan and was appointed to the bench last May by Biden. Judge Millett is an Obama appointee who, before becoming a judge, argued several dozen cases before the U.S. Supreme Court. Judge Pillard was appointed to the court by former President Obama after serving as a Justice Department lawyer and professor at Georgetown University’s law school.
Aside from the election case, President Trump has been criminally charged in Georgia, New York, and Florida. He has pleaded not guilty to all the charges.
Meanwhile, a judge in his New York City fraud trial issued a gag order targeting President Trump several weeks ago after he criticized one of the judge’s clerks. The former president also was fined by the judge, Arthur Enogoron, who the former president said is biased and acting on behalf of Democrats.
