Proposed Trump Gag Order to Be Considered in Federal Election Case

Former President Donald Trump arrives to deliver remarks to the Georgia state GOP convention at the Columbus Convention and Trade Center in Columbus, Ga., on June 10, 2023. Anna Moneymaker/Getty Images

The D.C. District Court is holding a hearing on Oct. 16 over the Biden administration’s request for a gag order on former President Donald Trump.

Special counsel Jack Smith had requested on Sept. 15 that Judge Tanya Chutkan prohibit President Trump from making certain types of statements about witnesses and others involved with the case. Mr. Smith’s filing also asks that President Trump’s legal team obtain court authorization before conducting a poll of prospective jurors for the case.

President Trump’s attorneys responded to Mr. Smith on Sept. 25 by accusing the Justice Department of attempting to impose unconstitutional prior restraints on their client’s political speech.

“The prosecution now asks the Court to take the extraordinary step of stripping President Trump of his First Amendment freedoms during the most important months of his campaign against President Biden,” the filing reads.

Left: Special counsel Jack Smith. Center: U.S. District Judge Tanya Chutkan. Right: Former President Donald Trump. Drew Angerer/Getty Images; Administrative Office of the U.S. Courts via AP; Brandon Bell/Getty Images

The hearing on Oct. 16 is in preparation for the trial starting March 4, 2024, over President Trump’s actions surrounding the 2020 election. Mr. Smith is accusing the former president of attempting to defraud the United States, attempting to obstruct proceedings on Jan. 6, 2021, and conspiring to disenfranchise voters.

President Trump also facing trial on election-related charges in Georgia and charges in Florida over his handling of classified documents.

In New York, President Trump faces additional charges related to his business activity. The judge in that case, Justice Arthur Engoron, told the former president to delete a social media post about clerk Allison Greenfield and a photo of her posing with Senate Majority Leader Chuck Schumer (D-N.Y.).

Trump’s Social Media Posts Under Scrutiny

Mr. Smith’s filing alleges that President Trump “has an established practice of issuing inflammatory public statements targeted at individuals or institutions that present an obstacle or challenge to him.” The special counsel pointed to statements President Trump made surrounding the 2020 election and went on to highlight social media posts the former president made about both Mr. Smith and Judge Chutkan.

“There is no way I can get a fair trial with the Judge ‘assigned’ to the ridiculous freedom of speech/fair elections case,” he posted on Truth Social in August. He’s also noted Judge Chutkan’s appointment by former President Barack Obama and asked her to recuse herself over statements that his attorneys said showed her bias against him. Judge Chutkan refused to recuse herself in September.

Mr. Smith also accused President Trump of posting “false and disparaging claims regarding the Department of Justice and prosecutors in the Special Counsel’s Office in an attempt to undermine confidence in the justice system and prejudice the jury pool against the Government in advance of trial.”

Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, at an office of the Department of Justice in Washington on Aug. 1, 2023. AP Photo

He pointed to Truth Social posts in which President Trump accused President Joe Biden’s “Department of Injustice” of “rigging the election for crooked Joe Biden.” Another showed President Trump calling Mr. Smith “deranged” and alleging that “he, the DOJ, and his many Thug prosecutors, are illegally leaking, everything and anything, to the Fake News Media!!!”

In an Aug. 6 post, President Trump also said his proposed “federal takeover” of D.C. was “very unpopular with potential jurors, but necessary for safety.” He said he couldn’t get anything close to a fair trial in Washington, D.C., which city he also called “filthy” and “crime ridden.”

In their response, President Trump’s attorneys argued that the proposed order wasn’t narrowly tailored and that “the prosecution does not identify a single potential juror who has allegedly become partial against the government due to President Trump’s statements.”

The filing also described the proposed gag order as “nothing more than an obvious attempt by the Biden administration to unlawfully silence its most prominent political opponent.”