Attorneys for former President Donald Trump filed a motion on Friday to temporarily lift the gag order imposed on him in the federal criminal case while he seeks a ruling from an appeals court. Hours later, Judge Tanya Chutkan approved an administrative stay, or pause, on her gag order while President Trump makes his appeal.
The government has until Oct. 25 to file any response, and President Trump would have three days to file a response to any opposition.
“No Court in American history has imposed a gag order on a criminal defendant who is campaigning for public office—least of all, on the leading candidate for President of the United States,” the motion reads, describing the Oct. 17 gag order as “the first of its kind.”
If Judge Chutkan does not approve lifting the gag order, President Trump is requesting a ruling by Oct. 24, after which he will seek an emergency stay, or pause, of that gag order from the appellate court.
No Evidence of Witness Intimidation
Following a request by special counsel Jack Smith to limit what President Trump could say regarding the case, Judge Tanya Chutkan issued a gag order that prohibited remarks that would “target” the prosecution and defense legal teams, court staff, and potential witnesses.“Given its extraordinary nature, one would expect an extraordinary and compelling justification for the Gag Order. But that is conspicuously absent. Instead, the Court generically states it must enter the Gag Order to prevent supposed ’threats’ and ‘harassment.’ This theory falters under even minimal scrutiny,” the new filing reads. Attorneys are also requesting a pause in administrative proceedings in the trial while they appeal the gag order.
Several individuals in these groups, including the special counsel and potential witnesses like former U.S. Attorney General Bill Barr, regularly post or make negative remarks about President Trump in the media, but under the gag order President Trump would not be able to address those comments, much less refute their claims.
“In doing so, the Gag Order shields public officials in the highest echelons of government from criticism, including key political rivals,” the motion reads.
Attorney John Lauro had said in court that President Trump is in the middle of a political campaign, and the court order would benefit his political opponents. Former Vice President Mike Pence is another potential witness, who is running against President Trump for the Republican nominee in the primaries.
The attorneys noted that though prosecutors argued President Trump was intimidating witnesses, they produced no evidence of any witness who felt threatened or intimidated.
Prosecutors admitted during the hearing that “of course” their concern was speculative, and that they wouldn’t be able to know for sure whether a witness was intimidated until they testified, and maybe not even then.
“These are fatal omissions. A prior restraint cannot be based on speculation,” the filing reads.
Instead, the court pointed to another gag order that had been imposed on President Trump in New York, where he is on trial in a fraud case brought by New York Attorney General Letitia James. There, a New York judge had issued a gag order after President Trump made a social media post about his clerk, and prohibited both parties from any statements targeting his staff.
Judge Chutkan wrote in her order and opinion that President Trump’s statements “pose a significant and immediate risk” that witnesses could be intimidate or court and attorney staff members could receive harassment.
In the motion, the attorneys argued that neither the prosecutors nor the judge had been open to considering other ways to prevent witness intimidation, jumping straight to the “overbroad” gag order.
First Amendment
Mr. Lauro had made several First Amendment arguments during the hearing before Judge Chutkan issued a gag order.“At bottom, the Gag Order violates virtually every fundamental principle of our First Amendment jurisprudence,” the new filing reads. The attorneys argue that it restrains what should be protected political speech, as well as denying the rights of President Trump’s audiences who want to hear his remarks.
In Judge Chutkan’s written opinion, she had dismissed First Amendment defenses, writing that the obligation to protect the proceedings from outside interference preceded First Amendment rights.
“In order to safeguard the integrity of these proceedings, it is necessary to impose certain restrictions on public statements by interested parties,” she wrote. “The defense’s position that no limits may be placed on Defendant’s speech because he is engaged in a political campaign is untenable, and the cases it cites do not so hold.”
“This court has found that even amidst his political campaign, Defendant’s statements pose sufficiently grave threats to the integrity of these proceedings that cannot be addressed by alternative means, and it has tailored its order to meet the force of those threats,” she wrote. “Thus, limited restrictions on extrajudicial statements are justified here.”
In the defense’s new filing, they note that the cases the judge cited in her opinion were ones that protected the civil rights of criminal defendants, describing it as “a dizzying irony.”
“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” the attorneys wrote, quoting the case Elrod v. Burns.
