WASHINGTON (CN) — Special counsel Jack Smith urged a federal judge to reinstate a gag order in Donald Trump’s election subversion case in Washington, after the order had been put on an administrative stay pending consideration of Trump’s appeal.
Molly Gaston, member of the special counsel’s team, defended the order in a Wednesday night filing. She rejected criticism that it was not narrowly tailored and argued it provides adequate space for Trump to assert his innocence and publicly criticize his political opponents, including President Joe Biden and the Department of Justice.
She also suggested that U.S. District Judge Tanya Chutkan modify Trump’s conditions of release to prevent inflammatory public comments that led to the order in the first place. These altered conditions, if violated, could result in Trump being charged with contempt, fined or imprisoned.
The request rounded out what proved to be a dramatic day at Trump’s civil fraud trial in Manhattan: After forcing Trump to testify on the spot, Judge Arthur Engoron fined him an additional $10,000 for comments he made to the press outside the courtroom. Trump, repeating claims that the legal cases against him are politically motivated, told reporters, “This judge is a very partisan judge, with a person who is very partisan sitting alongside him, perhaps even much more partisan than he is.”
Trump on the witness stand tried to dodge penalties by saying his comments referred to his former lawyer Michael Cohen — who has been testifying in the trial this week — but Engoron understood it as a reference to his court clerk, whom Trump had already targeted online earning himself a $5,000 fine.
Engoron did not believe Trump, saying he did not find him a credible witness, and tacked on the additional fine.
On top of the gag order drama in New York, Gaston also cited a recent Truth Social post by Trump in reference to his former chief of staff, Mark Meadows, who had reportedly taken an immunity deal with Smith to testify before a federal grand jury in Washington.
“Some people would make that [immunity] deal, but they are weaklings and cowards, and so bad for the future of our Failing Nation,” Trump wrote Tuesday evening. “I don’t think that Mark Meadows is one of them, but who really knows?”
Gaston included a screenshot of the full post, which also calls Smith “deranged,” as an example of Trump exhibiting the same sort of speech that would be prohibited by the gag order.
John Lauro, Trump’s lead lawyer in Washington, has argued the gag order constitutes a restraint on Trump’s speech without any evidence he had actually threatened or harassed anyone involved in the case.
Further, the order itself is a violation of Trump’s First Amendment rights and censors the GOP frontrunner in the midst of a presidential campaign, that Lauro says is a move by Biden to hinder his leading rival in 2024.
An unlikely supporter backed Trump in his gag order fight Wednesday: The American Civil Liberties Union filed an amicus brief criticizing the order as overly broad and vague. The civil rights group recommended more specific boundaries as to what Trump can and cannot say.
Also on Wednesday, Smith filed an additional brief urging Chutkan set a deadline for Trump’s lawyers to inform the court whether they plan on using an “advice-of-counsel” defense, meaning Trump believed his actions leading up to the Capitol riot were legal because his lawyers had told him it was.
The request itself is intended to avoid any delay that would push back the scheduled trial start date on March 4, 2024.
Three of Trump's former attorneys — Sidney Powell, Kenneth Chesebro and Jenna Ellis — have pleaded guilty in Fulton County, Georgia, where they were charged with interfering in the state’s election in 2020, in the same indictment charging Trump and 14 other co-defendants.
Thomas Windom, a member of the special counsel team, said that if Trump does plan to use an advice-of-counsel defense, “there is good reason to question its viability,” considering the three plea deals.
The plea deals include promises to testify truthfully against their fellow co-defendants like Trump and yet another of ex-attorneys, Rudy Giuliani, and such testimony could inform the overall tenor of the prosecutor’s case and Trump’s defense in his Washington trial.
Ellis gave an emotional statement before state Judge Scott McAffe while entering the plea deal.
"I failed to do my due diligence," Ellis told the judge tearfully. "I believe in and value election integrity. If I knew then what I know now, I would have declined to represent Donald Trump in these post-election challenges. I look back on this whole experience with deep remorse."
If Trump plans to use the defense, Windom requested a deadline be set for Dec. 18, rather than Trump’s preferred date of Jan. 15, 2024.
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