The Justice Department on Tuesday urged a Washington, DC, appeals court to uphold the gag order against Donald Trump in his federal election subversion criminal case, saying the former president’s recent attacks on special counsel Jack Smith’s family underscore why restrictions on Trump’s speech are necessary.
“There has never been a criminal case in which a court has granted a defendant an unfettered right to try his case in the media, malign the prosecutor and his family, and … target specific witnesses with attacks on their character and credibility,” Smith’s team told the US DC Circuit Court of Appeals in a filing.
Trump is asking the appeals court to undo the limited gag order issued last month by District Judge Tanya Chutkan. The former president has already failed once in his bid to undo the gag order, and the appeals court is set to hear oral arguments on the matter next week.
In a brief last week, Trump’s legal team told the appeals court that Chutkan went too far when she issued the order, which it called “sweepingly overbroad,” and repeated arguments that the order amounts to an unconstitutional check on his speech and limits his ability to campaign.
Smith’s office said in the new filing that the order “was based on well-supported factual findings, narrowly tailored to advance a compelling interest, and more than sufficiently clear to provide the defendant with fair notice of how to conduct himself.”
“In particular, the Order leaves the defendant free to do virtually everything that he has claimed, throughout the litigation, that he must be able to do to run for office while defending himself in court,” prosecutors wrote. “And the distinctions it draws between criticizing the policies of a political rival or describing the prosecution as politically motivated, on the one hand, and targeting trial participants or their expected trial testimony, on the other, is readily comprehensible. The Order should be affirmed.”
At a campaign rally last Saturday, Trump repeated several attacks on Smith, including with references to the special counsel’s family.
The former president said Smith is “deranged” and a “Trump-hating prosecutor,” and that “his wife and family despise me much more than he does.”
Referring to the alleged ill will Smith and his family have for Trump, the former president said that Smith is “about at 10” and his family is “about a 15 on a scale of 10.”
“The defendant has recently resumed targeting the Special Counsel’s family while the order has been administratively stayed,” prosecutors said in their filing, which mentioned other comments Trump has made while the gag order was temporarily frozen for a time by Chutkan and, currently, the appeals court.
Prosecutors also tied Trump’s previous statement on social media, which read “IF YOU GO AFTER ME, I’M COMING AFTER YOU!” to a death threat made against Chutkan this summer.
“That episode was part of a pattern, stretching back years, in which people publicly targeted by the defendant are, as a result of the targeting, subject to harassment, threats, and intimidation,” prosecutors told the appeals court.
Prosecutors also noted that Trump posted to social media a photograph of a state judge’s clerk in the ongoing New York civil fraud trial, “falsely alleging that she was the ‘girlfriend’ of a political adversary.” Trump is under a gag order in that case, and the judge ordered the post to be taken down, saying that his chambers have been flooded with threatening messages since the trial started.
The order restricts Trump’s ability to publicly target court personnel, potential witnesses or the special counsel and his staff. The order did not impose restrictions on disparaging comments about Washington, DC -– where the jury will take place –- or certain comments about the Justice Department at large, both of which the government requested.
In denying Trump’s request to pause the gag order while his appeal of it plays out, Chutkan said in part last month that “the First Amendment rights of participants in criminal proceedings must yield, when necessary, to the orderly administration of justice.”
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