Defense attorneys filed a letter on Nov. 24 rejecting the use of one gag order on former President Donald Trump to justify another.
The former president had two gag order imposed on him—one in a New York civil case, another in federal criminal court—which could complicate his ability to campaign effectively as he seeks to run for reelection in 2024. His legal teams have appealed both gag orders, which have since been temporarily lifted pending a decision from the respective appeals courts.
Federal prosecutors had, the day before, sent a letter to the U.S. Court of Appeals for the District of Columbia Circuity clerk, submitting state attorneys’ response to the appeal of a gag order from the New York case.
‘275 Pages’
The New York brief contained a sworn affidavit from court personnel in the Judicial Threats Assessment Unit, who said that after President Trump made the social media post which resulted in the gag order, the court staffer he mentioned by name received “hundreds of threatening and harassing voicemail messages that have been transcribed into over 275 single-spaced pages.”Prosecutors from special counsel Jack Smith’s office have argued that a gag order in the federal case, which alleges President Trump interfered with the 2020 elections in his last days in office, is necessary.
They initially requested a gag order to prevent President Trump from influencing potential jurors and witnesses, and to curb the candidate’s social media posts and speech regarding the special counsel’s office.
U.S. District Court Judge Tanya Chutkan ultimately issued a gag order preventing the parties from making statements that “target” the prosecution and defense legal teams and staff, court staff, and potential witnesses and the substance of their potential testimonies.
Defense attorneys have argued that the order is overly broad, but in a recent appeals hearing did not give any examples on how the order could be narrowed when pressed by a panel of judges.
Risk?
President Trump was indicted in August, and the gag order was issued almost three months later. Defense attorneys argue that President Trump made several posts about the case during this time, and prosecutors have not been able to connect those with any threats or intimidation.During the original hearing on the proposed gag order, and a recent appeals hearing, judges and prosecutors pointed to posts President Trump has made about potential witnesses—public figures such as former Attorney General Bill Barr and former Vice President Mike Pence.
Defense attorneys argued that they showed no risk of witness intimidation, doubting the posts had influenced Mr. Barr’s willingness to testify, for example. Prosecutors and judges insisted these posts, which often featured name-calling, either put people at risk for threats or could have the potential effect of influencing witnesses or jurors.
In the New York case, the staffer in question was Allison Greenfield, the principal law clerk of New York Supreme Court Justice Arthur Engoron, who is presiding over a bench trial regarding Trump Organization and fraud. Ms. Greenfield had run for Manhattan Civil Court the year before, and lost, and is not nearly as public a figure compared to several people named in relation to the federal criminal case.
“Moreover,” they note, the brief they seek to admit “concedes that ‘Mr. Trump did not directly threaten Ms. Greenfield.’” The voicemails had come from anonymous third parties, and President Trump had not called for action against Ms. Greenfield in any statements; he had claimed she was a “partisan” influence on the trial.
“This confirms that the prosecution seeks to impose ‘a speech burden based on audience reactions,’ which ‘is simply a government hostility and intervention in a different guise,’” they wrote, citing precedent.
The situations in these two cases are unequal, they argued, and the complaints the defense in the New York case had made about Ms. Greenfield were in relation to a mistrial motion wherein they were concerned about partisan influence on the bench.
“The prosecution ignores that the New York trial judge and the Principal Law Clerk are judicial officers, and the Principal Law Clerk has violated New York law by engaging in forbidden partisan activity while that case was pending,” the Nov. 24 letter reads.
What Can He Say?
The gag order was briefly lifted for a few days by Judge Chutkan, after which she reinstated it and elaborated in an opinion that President Trump made social media posts during the time the gag order was lifted that he certainly would not have been able to make if it had been in effect.A soon-debunked story about former Chief of Staff Mark Meadows testifying in exchange for immunity had broke during those few days. Anonymous sources said Mr. Meadows had told President Trump he lost the 2020 elections while challenges were ongoing, and President Trump posted on social media that Mr. Meadows never said such a thing to him. Mr. Meadows’s attorney issued a statement that the story was false as well; sources backtracked, and journalists apologized.
Defense attorneys had argued that had the gag order been in effect, President Trump would not have been allowed to weigh in and defend himself, and his silence would not have prevented the spreading of the story. Judge Chutkan said this was the intended effect.
During a recent hearing, prosecutors argued President Trump should not be able to claim a potential witness “lied” or otherwise call into question their credibility.
Appeals court judges seemed skeptical of this argument, and of the rational that the gag order is meant to protect public figures like Vice President Pence, or even Mr. Smith, from criticism.
They seemed to adopt the rationale of the New York gag order, however, expressing interest multiple times in protecting court staffers and other non-public figures from potential harassment.
