WASHINGTON (CN) — Donald Trump’s lawyers blasted special counsel Jack Smith’s request for a gag order in the former president’s Jan. 6 election subversion case late Monday night, framing the proposed order as an attempt to limit the leading Republican candidate’s speech on the campaign trail.
U.S. District Judge Tanya Chutkan gave Trump's team a deadline to reply after Smith’s office filed a motion for a “narrowly tailored order” that restricts “certain prejudicial extrajudicial statements” such as those the former president had made on social media targeting prosecutors like Smith, potential witnesses and Chutkan herself.
Gregory Singer, a member of Trump’s legal team in Washington of the firm Lauro & Singer, wrote in the reply brief that Smith’s claims that Trump’s public statements were inflammatory and could lead to witness intimidation or taint the jury pool in Washington were unfounded and called on Chutkan to reject the proposal.
He pointed to a Sunday Washington Post-ABC News poll that showed Trump leading President Joe Biden by 10 percentage points in a potential rematch in 2024, a current outlier compared to other recent polling that has projected a much tighter race.
“The Proposed Gag Order is nothing more than an obvious attempt by the Biden Administration to unlawfully silence its most prominent political opponent, who has now taken a commanding lead in the polls,” Singer wrote.
He claimed that the gag order is just the most recent step in an apparent scheme by the administration to disadvantage Trump in the public’s eye before the presidential election has even begun, starting with the initial Aug. 1 indictment.
“His administration’s plan is quite simple: unleash a 45-page speaking indictment, discuss and leak its talking points in the press, and then cynically attempt to invoke the Court’s authority to prevent President Trump and those acting on his behalf from presenting his side of the story to the American people during a political campaign," Singer said. "This desperate attempt at censorship is unconstitutional on its face.”
While Smith was appointed as special counsel by Attorney General Merrick Garland and has to follow Justice Department policies, he is not subject to day-to-day supervision by the department.
Molly Gaston, a member of the special counsel team, requested the proposed order on Sept. 15, arguing that the former president’s “inflammatory” rhetoric could negatively influence the case.
In the request, she referenced an all-caps message Trump posted to his Truth Social site the day after his Aug. 3 arraignment, where he wrote “IF YOU GO AFTER ME, I’M COMING AFTER YOU!”
“He has made good on his threat,” Gaston wrote. “Since the indictment in this case, the defendant has spread disparaging and inflammatory posts on Truth Social on a near-daily basis regarding the citizens of the District of Columbia, the court, prosecutors, and prospective witnesses.”
She also cited seven instances following the 2020 election where Trump targeted people online he felt were responsible for his loss and spread misinformation that they were committing election fraud. Once Trump targeted and named individuals, threats from his supporters soon followed.
Chutkan herself received a racist death threat from a supposed Trump supporter, who called the Obama appointee’s chambers.
During an Aug. 11 hearing regarding a protective order regulating how Trump handles and talks about evidence in the case, Chutkan warned John Lauro, Trump’s lead attorney in Washington, and his team that if their client continued to make threatening statements, the “greater the need to move quickly to trial.”
The trial is currently scheduled to begin March 4, 2024. One of Trump’s top strategies is to delay the trial as long as possible with pretrial motions so that if he retakes the White House, he can have his newly appointed attorney general throw out the four federal charges against him, or potentially pardon himself if he is convicted.
Singer further criticized the prosecution’s request for a gag order, arguing that much of Trump’s speech is Constitutionally protected critiques of the government and offers no “clear and present danger” that would normally warrant limiting protected speech.
“If the prosecution wishes to avoid criticism for abusing its power, the solution is simple: stop abusing its power. The Constitution allows no alternative," Singer wrote.
It is unclear how Chutkan will rule on the order, as the First Amendment sets a high standard of proof that someone’s speech is threatening and would hamper a fair ruling in the case.
But there is very little precedent when the defendant is a former president and presidential candidate accused of using the powers of his office to strip Americans' right to have their vote counted and to maintain his grip on power.
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