Background: Donald Trump speaks at a rally event in 2016. (AP Photo/Chris Carlson, File)/ Inset: Special counsel Jack Smith speaks to the media about an indictment of former President Donald Trump, Tuesday, Aug. 1, 2023, at an office of the Department of Justice in Washington. (AP Photo/J. Scott Applewhite, File)
In a contentious response to a limited gag order sought by special counsel Jack Smith, attorneys for Donald Trump fighting allegations that the former president criminally conspired to overturn the results of the 2020 election blasted everyone from the media to the Biden administration to the Justice Department for what they claim are imminent violations of Trump’s First Amendment rights.
The heated 25-page filing from attorneys Greg Singer, Todd Blanche and John Lauro entered Monday night comes after prosecutors first asked presiding U.S. District Judge Tanya Chutkan on Sept. 5 to impose narrow limits on Trump’s public commentary about the case.
That request was made under seal and then unsealed on Sept. 15, just four days after Trump first demanded Judge Chutkan recuse herself from the case altogether, thinly alleging she too was biased against him.
The prosecution’s Sept. 5 proposed gag order featured a litany of examples of Trump’s “inflammatory” public remarks leading to threats, shows of violence and attacks on the people or institutions he deems his enemies and adversaries. It also includes some of Trump’s most recent comments, including those attacking Judge Chutkan or prosecutor Jay Bratt, as well as attacks on former Vice President Mike Pence, Ruby Freeman and Shaye Moss, and others. Prosecutors additionally asked Chutkan to place rules around how Trump’s defense team might conduct polling in Washington, D.C., as prospective jurors are sorted out ahead of his trial in the district in March 2024.
The real timing of the special counsel’s proposed gag order is a particularly important detail as it relates to Monday’s filing from the defense. This is because Trump’s attorneys suggest that the proposed order only came up once President Joe Biden through public polling became “keenly aware that [he] is losing [the] race for 2024.”
Calling it “transparent gamesmanship” from prosecutors intended to “poison” Trump’s defense as he enters “the most important months of his campaign against President [Joe] Biden in the 2024 presidential race,” defense attorneys seethed: “At bottom, 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. Indeed, this very Motion came on the heels of adverse polling for President Biden.”
Notably, the defense does not cite the polling data it references at all. Nonetheless, the claim dovetails neatly with Trump’s lengthy public track record of claiming political persecution by anyone opposed to his position, policy, or opinion.
“[The Biden] administration’s plan is quite simple: unleash a 45-page speaking-indictment, discuss and leak its talking point 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,” Trump’s lawyers wrote. “This desperate effort at censorship is unconstitutional on its face.”
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It will be left to Judge Chutkan to rule on the proposed gag order, as well as a motion seeking her recusal. The bar to remove a judge is quite steep and stark examples of wrongdoing or bias must be proven. None such examples meeting this threshold appear to exist in the case of Judge Chutkan and Trump.
It is also not terribly uncommon for gag orders to be issued in criminal cases, though this situation bears its own burdens since Trump is, inarguably, a unique defendant since he is running for the U.S. presidency while facing faces four criminal indictments.
Taking this to mind, Chutkan has already warned Trump that despite his “day job,” she would take whatever steps were necessary to preserve the integrity of proceedings and protect witnesses.
Trump has seemed undeterred. In recent days, he has taken to social media to lash out at the outgoing chairman of the Joint Chiefs of Staff, Mark Milley, including the idea that Milley should be executed. Milley could be a witness in Trump’s impending trial. His defense attorneys contend, however, that there’s not “one shred of evidence” presented by the prosecution to support its claims that possible witnesses may be intimidated.
To the contrary, “these individuals appear to relish the notoriety they have gained through their proximity to President Trump,” Singer wrote, noting their public appearances or books and interviews.
The “corporate media” and “President Biden and his surrogates” will also have “free reign to say whatever they want,” defense attorneys argue, pointing to a press conference Smith held in August where he announced the charges against Trump. The press conference lasted only a few minutes and Smith took no questions.
Though President Biden has not commented on the merits of Trump’s Jan. 6 indictment, Trump meanwhile has called his trial venue of Washington, D.C., “filthy and crime ridden” and that it is “over 95% anti-Trump.”
The proposed gag order has only asked Chutkan to narrowly tailor the terms of Trump’s speech in public about the case. Specifically, they have asked for limits on comments about the identity, testimony or credibility of witnesses.
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