Left: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File); Right: Donald Trump speaks to members of the media before departing Manhattan criminal court, Monday, May 6, 2024, in New York. (AP Photo/Julia Nikhinson, Pool)
While lawyers for Donald Trump have brought the fight over presidential immunity — and the Supreme Court’s recent ruling granting it — to U.S. District Judge Aileen Cannon’s courtroom, the fight over what the ex-president can and cannot say about the case continues apace.
In dueling briefs filed late Friday, special counsel Jack Smith and Trump’s defense lawyers continued to make their respective cases both for and against a gag order, with lawyers for the ex-president all but inviting Cannon to restrict what President Joe Biden can say about the Supreme Court.
Smith’s brief focused on the impact of Trump’s social media posts about those involved in the multiple criminal cases against him.
“The Government’s exhibits demonstrate that when Trump singles out public servants with vitriolic and inflammatory attacks, those people (and their family members) are routinely subjected to death threats, doxing, swatting, and other forms of harassment as a result,” the brief says, adding that judges, court staff, prosecutors, and public officials have all been targeted following statements from Trump.
“There is thus overwhelming evidence that when Trump holds up public servants for sustained, inflammatory attacks, a ‘predictable torrent of threats of retribution and violence’ follows,” the brief says — and Trump, the government alleges, knows this.
“And yet he has made no effort to discourage these threats and harassment, despite knowing that his followers listen to him ‘like no one else,”” the brief says. “The only reasonable inference — which Trump has made no effort to dispel — is that he tacitly welcomes and encourages the threats that some of his followers inevitably visit on those whom he targets.”
Smith raises Trump’s recent social media posts claiming that “the agents who executed the search warrant at Mar-a-Lago were out to kill him and endanger his family foreseeably exposed those agents to the very sorts of threats and harassment that has been visited on his other targets.”
Prosecutors say this is only more proof that Trump knows exactly what he’s doing.
“After adding his recent false and inflammatory claims to the climate of anger that he has created, he cannot plausibly claim that his statements do not ‘endanger the safety of any other person or the community,’” the brief argues. “Nor can he plausibly claim that the danger to the agents is meaningfully reduced by the existence of the protective order, given the widespread prevalence of doxing and the fact that Trump’s own former aide revealed the identities of two of the agents after the search.”
Trump’s lawyers, however, insist that Trump’s statements and social media posts are “core political speech” and imply that the government is getting desperate.
“Notwithstanding their kitchen-sink approach, the voluminous submission by the Special Counsel’s Office does not meaningfully advance their indefensible position,” the defense brief says.
Trump’s legal team says that the focus on “five statements between May 21 and 25, 2024,” is unwarranted.
“It is now July,” the brief says before saying that Smith’s office has “not pointed to a single threat to a participant in the Mar-a-Lage raid based on President Trump’s wholly appropriate political speech in May 2024.”
“That is no surprise, of course, as the Office has greatly exaggerated the import of President Trump’s political opinions on that topic, and the names of the search participants are sealed,” the brief adds.
Trump’s lawyers say gag orders issues in other criminal prosecutions are “unconstitutional” and irrelevant to the Mar-a-Lago case.
Trump’s lawyers then pivot to Biden’s recent comments regarding the Supreme Court’s immunity ruling. The president called the ruling “absolutely dangerous” and “terrifying.” Trump’s lawyers, in an effort to point the finger instead at Biden, use Smith’s own description of Trump’s social media posts to support the idea that Biden himself should be subject to a gag order.
“To use Jack Smith’s words, President Biden’s communications contain ‘several intentionally false and inflammatory statements,’ which ‘create a grossly misleading impression’ about the Supreme Court’s ruling, and are arguably ‘vengeful,’” the filing says, adding that Biden’s words expose the Supreme Court justices to “‘unjustified and unacceptable risks.’”
The brief notes a social media post from an actress who posted that Biden should take advantage of the Supreme Court’s new immunity rules and order Trump’s murder. Biden, the brief says, hasn’t done enough to discourage “these threats and harassment, despite knowing that his followers listen to him.”
This purported threat, Trump’s lawyers say, surpasses the impact of anything Trump has regarding people linked to the cases against him.
“In short, there is more direct and recent evidence supporting the need for a prior restraint on President Biden than there is supporting the bail-modification motion by the Special Counsel’s Office,” the brief adds, despite the fact that Biden himself is not a party to the case.
Lawyers for Trump, who continue to insist that Biden is in league with the special counsel, suggest that their focus on Biden — who is not a party to the Mar-a-Lago case — will not waver.
“Operating in the vortex created by President Biden’s work with Jack Smith to interfere with the upcoming election requires a ‘thick skin,’” the brief says, quoting December 2023 ruling by the U.S. Court of Appeals for the District of Columbia upholding a gag order in Trump’s Washington, D.C., election subversion case, before adding a warning: “Those who are behind this FBI public-relations campaign, styled as a motion for unprecedented and unconstitutional relief against the leading Presidential candidate in the 2024 election, ought to heed that guidance more closely.”
You can read the government’s brief here and Trump’s brief here.
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