Former President Donald Trump’s legal team urged the court hearing the 2020 election case against him to reject prosecutors’ request that a gag order be imposed on him to limit what evidence he can share and talk about with the public as the case proceeds.
The prosecution has said President Trump’s communications must be restricted because he “has previously issued public statements on social media regarding witnesses, judges, attorneys and others associated with legal matters pending against him.”
They noted that President Trump, who was cautioned at his Aug. 3 arraignment in Washington against making improper contact with witnesses in the case, wrote on social media in all-caps: “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
The U.S. Department of Justice has said the justice system may be adversely affected if President Trump releases certain documents.
“If the defendant were to begin issuing public posts using details—or, for example, grand jury transcripts—obtained in discovery here, it could have a harmful chilling effect on witnesses or adversely affect the fair administration of justice in this case,” the agency wrote in a filing.
The request for a so-called protective order that would restrict President Trump’s speech and hinder his ongoing campaign for the presidency should be rejected by the court hearing the case, his attorneys said in a 29-page brief filed at the end of the business day on Aug. 7.
The Federal Rules of Criminal Procedure allow the court “to enter protective orders limiting the use of sensitive discovery materials that present particularized safety or security concerns,” President Trump’s attorney in the case, John Lauro of Lauro Singer in Tampa, Florida, wrote in the filing with U.S. District Court in the District of Columbia.
“Instead of hewing to this narrow framework, the government requests the Court restrict all documents produced by the government, regardless of sensitivity, contrary to established law and President Trump’s First Amendment rights.”
“In a trial about First Amendment rights, the government seeks to restrict First Amendment rights,” Mr. Lauro wrote in the document.
“Worse, it does so against its administration’s primary political opponent, during an election season in which the administration, prominent party members, and media allies have campaigned on the indictment and proliferated its false allegations.”
Mr. Lauro added that President Joe Biden has politicized the prosecution.
Mr. Biden “promised from the outset that his administration would ensure President Trump ‘does not become the next President again,’ adding an unprecedented political dimension to this prosecution,” he wrote, referencing comments Mr. Biden made at a press conference on Nov. 9, 2022.
“Moreover, the Biden Justice Department waited over two-and-a-half years to seek this indictment, during an election cycle in which President Trump is the leading candidate.
“Against this backdrop, the government requests the Court assume the role of censor and impose content-based regulations on President Trump’s political speech that would forbid him from publicly discussing or disclosing all non-public documents produced by the government, including both purportedly sensitive materials … and non-sensitive, potentially exculpatory documents … restricting ‘[a]ll materials provided by the United States in preparation for, or in connection with, any stage of this case …’.
“This untargeted method offends both the First Amendment, which requires a compelling government interest and narrow tailoring to justify a prior restraint … and Rule 16 which ‘places no express limits on the purposes for which discoverable material can be used,’” he wrote, citing procedural rules and prior precedent.
Several hours before the brief became public, President Trump wrote on the TruthSocial microblogging site that the request for a gag order should be rejected:
“No, I shouldn’t have a protective order placed on me because it would impinge upon my right to FREE SPEECH. Deranged Jack Smith and the Department of Injustice should, however, because they are illegally ‘leaking’ all over the place!”
President Trump’s lawyer also argues in the new brief that if the court imposes a protective order it should be narrowly drawn.
The need to protect sensitive materials “does not require a blanket gag order over all documents produced by the government. Rather, the Court can, and should, limit its protective order to genuinely sensitive materials—a less restrictive alternative that would satisfy any government interest in confidentiality while preserving the First Amendment rights of President Trump and the public.”
It is unclear when Judge Chutkin will rule on the government’s motion.
